[2022] KEELC 3643 (KLR)
The court declined to grant the conservatory orders sought in prayer No. 2 of the application dated March 3, 2022. The court found that there was uncertainty regarding the current state of the construction in question, as the applicant did not clarify whether construction was ongoing or complete, while the 3rd to...
Source-derived case information.
- Citation
- [2022] KEELC 3643 (KLR)
- Parties
- Applicant: Saylesh Court Limited; Respondent: County Government of Nairobi; Respondent: National Environment Management Authority; Respondent: Anil Shantkal Mulji Thakkar; Respondent: Sanjay S Thakkar; Respondent: Dipan Shantilal Mulji Thakkar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E006 of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
- Outcome
- Application for conservatory orders dismissed.
- Judges
- LN Mbugua
- Legal Topics
- Conservatory Orders, Preliminary Objection, Land Use Planning, Environmental Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saylesh Court Limited
Applicant
County Government of Nairobi
Respondent
National Environment Management Authority
Respondent
Anil Shantkal Mulji Thakkar
Respondent
Sanjay S Thakkar
Respondent
Dipan Shantilal Mulji Thakkar
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
Legal Issues
- 1 Whether the court should grant conservatory orders to safeguard the applicant's property pending determination of the petition.
- 2 Whether the application for conservatory orders is rendered moot by the alleged completion of construction works.
Ratio Decidendi
The court declined to grant the conservatory orders sought in prayer No. 2 of the application dated March 3, 2022. The court found that there was uncertainty regarding the current state of the construction in question, as the applicant did not clarify whether construction was ongoing or complete, while the 3rd to 5th respondents asserted that construction was already finished. The court held that it cannot grant orders in vain, and in the absence of clear evidence of ongoing construction or imminent harm, it was not appropriate to issue the conservatory orders at this stage. The application for conservatory orders was therefore dismissed, pending further clarification or determination of...
Court Disposition
Application for conservatory orders dismissed.
Orders
- Prayer No. 2 in the application dated March 3, 2022 is declined at this stage.
- Parties to proceed with the hearing of the preliminary objections as directed.
Full Case Text
Judgment text and source record
30 paragraphs
Saylesh Court Limited v County Government of Nairobi & 4 others (Environment & Land Case E006 of 2022) [2022] KEELC 3643 (KLR) (26 May 2022) (Ruling)
Neutral citation: [2022] KEELC 3643 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E006 of 2022
LN Mbugua, J
May 26, 2022
In The Matter Of The Constitution Of Kenya Art. 10, Art.42, Art.47, Art.66, Art.68, Art.70 And Art.73 And In The Matter Of The Pysical Planning And Land Use Act, 2019 (as Read With The Physical Planning Act, Cap 286-repealedAndIn The Matter Of The Environmental Management And Co-ordination Act, 1999
Between
Saylesh Court Limited
Petitioner
and
County Government of Nairobi
1st Respondent
National Environment Management Authority
2nd Respondent
Anil Shantkal Mulji Thakkar
3rd Respondent
Sanjay S Thakkar
4th Respondent
Dipan Shantilal Mulji Thakkar
5th Respondent
Ruling
1. This suit was filed by way of a petition contemporaneously with an application for conservatory orders dated March 3, 2022. The said application came up for hearing on 18. 5.22 when it emerged that the 2nd defendant and 3rd – 5th defendants had filed preliminary objections dated April 25, 2022 and May 17, 2022 respectively. The court has given directions that the said preliminary objections be heard by way of written submissions.
2. Meanwhile the petitioner has urged the court to grant prayer 2 in their application to safeguard the property of the said party noting that service of the said application was effected in good time but no replying affidavits were lodged.
3. Counsel for 2nd defendant contends that prayer No 2 is not directed against them hence they did not respond to the issue raised in prayer No 2.
4. Counsel for 3rd -5th defendnats has objected to the issuance of prayer No 2 averring that construction is complete.
5. This ruling therefore relates to the issue as to whether prayer No 2 in the application dated March 3, 2022 should be allowed.
6. I have perused the record and I find that construction commenced well way before June 2021 going by the documents availed by the petitioner. It is not clear from the petitioner as to the current state of the offending structure, while 3rd-5th defendants aver that construction is complete. The court cannot give orders in vain and in view of uncertainty as to the stage of construction, I decline to grant the orders sought in prayer No 2 at this stage.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF MAY, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Kimathi for the PetitionersAkang’a for the 3rd and 5th RespondentsCourt Assistant: Eddel