https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4031

Shah & 42 others v Denko Properties Ltd & 2 others (Environment and Land Case E005 of 2023) [2026] KEELC 4031 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4031 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case E005 of 2023 NA Matheka, J July 2, 2026 Between Sanjay Jadavji Shah & 42 others Plaintiff and Denko Properties Limited 1st Defendant Dennis Mbaabu Karani 2nd Defendant Victor Kobia Mbaabu 3rd Defendant Ruling 1.The application is dated 21st August 2026 and is brought under Rule Under Order 50 Rule 4; Order 51(Rule 1) of the Civil Procedure Rules (2010), Section 1A, 1B & 3A of the Civil Procedure Act, Cap 63, Laws of Kenya and Article 159 of the Constitution of Kenya, 2010 seeking the following orders: -1.That this Application be certified urgent and be heard ex-parte in the first instance.2.That the Plaintiffs/Respondents be directed to pay water bills to the 1st Defendant/Applicant for water consumed on their respective plots pending the hearing and determination of this Application.3.That the 2nd and 3rd Defendants/Applicants be struck out from this suit.4.That the Plaintiffs/Respondents be directed to pay water bills to the 1st Defendant/Applicant for water consumed on their respective plots pending the hearing and determination of this suit.5.That the Honourable Court be pleased to give any other orders it may deem fit and just.6.That costs of this Application be granted to the Defendants/Applicants. 2.The application is based on the following grounds that the Contracts subject of this suit are between the Plaintiffs/Respondents are the 1st Defendant/Applicant only. That the Plaintiffs/Respondents never applied to lift the 1st Defendant/Applicant veil of Incorporation and thus the 2nd and 3rd Defendants/Applicants are wrongly, in their personal capacities and they seek to be struck out from this suit. That further, Contracts subject of this suit are between the Plaintiffs/Respondents and the 1st Defendant/Applicant never provided for free water supply but for provision of accessibility of water through digging of a borehole and laying of water pipes to the Plaintiffs/Respondents plots. That when the Plaintiffs/Respondents contracted Greengro International Ltd to provide farming services to them, the Plaintiffs/Respondents paid water bills to the 1st Defendant/Applicant for water consumed on their respective plots. That the Plaintiffs/Applicants later evicted the 1st Defendant/Applicant and Greengro International Ltd from their plots with a cease-and-desist letter sent by the Plaintiffs/Applicants' Advocates. That the Plaintiffs/Applicants filed this suit seeking provision of water by the 1st Defendant/Applicant falsely alleging that the Defendants/Applicants blocked them from getting the water whereas it is the Plaintiffs/Applicants who evicted the 1st Defendant/Applicant and Greengro International Ltd from their plots. That they seek an order for the Plaintiffs/Respondents to be directed to pay for water supplied to their respective plots as the same is necessary for running, powering and maintaining the borehole and water connections. That it is in the best interests of justice and all fairness that this application be allowed. 3.The Respondents state that the Applicants seek enforcement of contract terms between the parties which the Applicants have breached forcing the Respondents to terminate the same. That the Applicants have failed to disclose to the court that as per the contracts for agronomic support and market linkage service in clause 4.1.1 of the said agreement stated that the purchaser shall pay service charge to the vendor for a fair portion of the operating expenses of the estate which shall be deducted from the returns at the end of every season as detailed in the schedule. That the issue of the water bills is res judicata as per the judgement in Small Claims Case No. E313 of 2022. 4.This court has considered the application and the submissions therein. It is trite law that for an interlocutory mandatory injunction to issue an applicant must demonstrate existence of special circumstances. See Kenya Breweries Limited vs. Washington Okeyo, Civil Application No. 332 of 2000. 5.Likewise, in volume 24 Halsbury’s Laws of England, 4th Edition paragraph 948, the learned authors state as follows:A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff…. a mandatory injunction will be granted on an interlocutory application.” 6.The Applicants sought inter alia for a mandatory/permanent injunction for the payment of water bills.. Mandatory/ permanent injunction is ordinarily granted after a full hearing and when all the evidence has been adduced and all facts have been established. In the case of Kenya Power & Lighting Co. Limited vs Sheriff Molana Habib (2018) eKLR it was held inter alia as follows;…A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected. A permanent injunction is different from a temporary/interim injunction since a temporary injunction is only meant to be in force for a specified time or until the issuance of further orders from the court. Interim injunctions are normally meant to protect the subject matter of the suit as the court hears the parties…” 7.When it comes to mandatory injunctions, courts have been hesitant to grant the same particularly at the interlocutory stage, save in clear-cut cases. Such was the reasoning taken by the court in Lucy Wangui Gachara vs Minudi Okemba Lore (2015) eKLR when it rendered itself thus;…the court will not grant a mandatory injunction if the damage feared by the plaintiff is trivial, or where the detriment that the mandatory injunction would inflict is disproportionate to the benefit it would confer. We would also add that, save in the clearest of cases, the right of the parties to a fair and proper hearing of their dispute, entailing calling and cross-examination of witnesses must not be sacrificed or substituted by a summary hearing. 8.Persuasive judicial pronouncements by Indian courts have also affirmed that great circumspection is called for before awarding a mandatory injunction at interlocutory stage. In BHARAT PETROLEUM CORP LTD V. HARO CHAND SACHDEVA, AIR 2003, Gupta, J. of the Delhi High Court observed as follows:“While Courts power to grant temporary mandatory injunction on interlocutory application cannot be disputed, but such temporary mandatory injunctions have to be issued only in rare cases where there are compelling circumstances and where the injury complained of is immediate and pressing and is likely to cause extreme hardship. If a mandatory injunction has to be granted at all on interlocutory application, it is granted only to restore status quo and not to establish a new state of things.” 9.The issue as to whether the contract was rightfully terminated for breach of contract and if the issue of payment of water bills is res judicata can only be determined once the matter goes on to full hearing. On the issue of striking out the 2nd and 3rd Applicant’s from the suit as there have been sued in their personal capacity. The Respondents state that the 2nd and 3rd Defendants collectively procured the execution of the contracts and personally warranted the performance of the same and that they seek reliefs from all the Defendants. I find that it would be premature for me to grant final orders at this interim stage infavour of the Applicants. 10.In view of the foregoing, I find that the application is not merited and that parties are to comply with order 11 and set the matter down for hearing. Costs of the application to be in the cause.It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 2ND DAY OF JULY 2026.N.A. MATHEKAJUDGE