Nyamawi & 30 others v Kenya Airports Authority (Environment & Land

Case E027 of 2022) [2024] KEELC 131 (KLR) (25 January 2024) (Judgment)
Neutral citation: [2024] KEELC 131 (KLR)

REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MOMBASA
ENVIRONMENT & LAND CASE E027 OF 2022
NA MATHEKA, J
JANUARY 25, 2024

BETWEEN
WILSON RHUMBA NYAMAWI ........................................................ 1ST PLAINTIFF
NYAMAWI RUMBA NYAMAWI ...................................................... 2ND PLAINTIFF
RUMBA NYAMAWI RUMBA ............................................................ 3RD PLAINTIFF
DZALA MALAU KOMBO .................................................................. 4TH PLAINTIFF
RICHARD KARISA KATANA .......................................................... 5TH PLAINTIFF
MUNYAZI MOTI KARENGE ............................................................ 6TH PLAINTIFF
JUMA KATAMBO ................................................................................ 7TH PLAINTIFF
LINA REHEMA NDORO ................................................................... 8TH PLAINTIFF
MBUI RHUMBA NYAMAWI ............................................................. 9TH PLAINTIFF
KOMBO MKAZI KAKONO ............................................................. 10TH PLAINTIFF
CHANGAWA KATANA .................................................................... 11TH PLAINTIFF
HARRISON CHUPHI ....................................................................... 12TH PLAINTIFF
UMAZI JOTO TSUMA ...................................................................... 13TH PLAINTIFF
MATANO MADEM MANGALE ...................................................... 14TH PLAINTIFF
MEJUMAA DZINE CHIGAMBA ..................................................... 15TH PLAINTIFF
AMINA NYAMAWI MUMBA .......................................................... 16TH PLAINTIFF
MWANAMISI NGINGO ................................................................... 17TH PLAINTIFF
MARGARET BARABARA ............................................................... 18TH PLAINTIFF
JULIANA KAMENE MWANIA ....................................................... 19TH PLAINTIFF
GONZI IDD TSIMBA ........................................................................ 20TH PLAINTIFF
ZUMA NYAMAWI MUMBA ............................................................. 21ST PLAINTIFF

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 MAZERA NYAMAWI ....................................................................... 22ND PLAINTIFF
MALI CHARO JEFA .......................................................................... 23RD PLAINTIFF
KENNEDY NYAMAWI RUMBA ..................................................... 24TH PLAINTIFF
KISITSA MAKANGA ........................................................................ 25TH PLAINTIFF
MWALIM MASHA SIRIA ................................................................. 26TH PLAINTIFF
KIBAO MKUZI KAKONO ............................................................... 27TH PLAINTIFF
MBEYU TSUMA MWANGOMA ..................................................... 28TH PLAINTIFF
CHOMBO MWAZIGE KASUKA ..................................................... 29TH PLAINTIFF
KAFWANI DIMA SHEHE ................................................................ 30TH PLAINTIFF
OMARI MANDARA CHINENE ...................................................... 31ST PLAINTIFF

AND
THE KENYA AIRPORTS AUTHORITY ............................................ DEFENDANT

JUDGMENT

1. The plaintis aver that they have occupied, lived and farmed for more than 30 years on the land
bordering the Moi International Airport. That on the 21st February 2020 under heavy police guard,
heavy machinery and under the direction and orders of the Defendant, the defendant and its agents
descended on the plaintis crops and homes and completely destroyed all the plaintis' homes and
farms. The plaintis' sources of livelihood, on which they had depended, and the only homes they ever
knew, were destroyed in minutes. The plaintis aver and maintain that no notice of any impending
eviction was ever given to the plaintis nor was any public participation of any kind ever conducted.
The plaintis have been rendered destitute, homeless and in a hopeless situation and the plaintis have
suered loss and damage. The plaintis aver and maintain that their eviction from their ancestral land
by the defendant was unlawful and illegal, and the plaintis claim damages. The the plaintis pray for
judgement against the defendant for;

a. Damages for wrongful evection.

b. A permanent injunction to restrain the defendant, itself, its servants and or agents from
evicting or further demolishing their homes, harassing and or interfering with the plaintis'
occupation of their ancestral land.

c. An Order compelling the defendant to reinstate and resettle the plaintis on their ancestral
land.

d. Costs of and incidental to this suit.

2. The defendant avers that the plaintis have not been in occupation and/or possession of any land
that borders Moi International Airport. The Defendant without prejudice to the above further avers
that the land the plaintis have allegedly been occupying living and farming on is not even described/
disclosed in the plaint further cementing the fact that the plaintis have not been in occupation and/
or possession of any land that borders Moi International Airport.The defendantavers that there was
no need for any eviction notice or public participation as alleged as the plaintis as stated earlier did

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 and do not occupying any land bordering Moi International Airport that would call for such actions
to be undertaken by the defendant. The defendant avers that it did not evict anyone from their land,
ancestral or otherwise and as such did not render anyone homeless or destitute and the allegations of
loss and damage.

3. The defendant avers that the plaintis besides not describing the land that it is alleged the defendant
invaded have also not demonstrated to this court the allegations of their occupation, possession and
eviction and damage to the crops and homes and as such this suit lacks merit, it frivolous and vexatious
and should be dismissed at the earliest opportune moment. The defendant further avers that the
plaintis have not fullled the ingredients required for grant of injunctive orders.

4. This court has considered the evidence and submissions therein. With regard to the grant of a
mandatory injunction, the test is correctly set out in Vol. 24 Halsbury's Laws of England 4th Edition,
Paragraph 98, thus:

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 a simple and summary one which can be easily remedied, or if the defendant
attempted to steal a march on the plainti... a mandatory injunction will be granted on an
interlocutory application". Also in Locabail International Finance Ltd -v- Agroexport and
Others [1986] 1 All ER 901, at page 901,it was stated:

A mandatory injunction ought not to be granted on an interlocutory application

in the absence of special circumstances, and then only in clear cases either where
the court thought that the matter ought to be decided at once or where the
injunction was directed at a simple and summary act which could be easily
remedied or where the defendant had attempted to steal a march on the plainti.
Moreover, before granting a mandatory injunction the court had to feel a high
degree of assurance that at the trial it would appear that the injunction had rightly
been granted, that being a dierent and higher standard than was required for a
prohibitory injunction".

5. Clearly, the plaintis in this case want inter alia a mandatory interlocutory injunction and in order to
succeed, one needs to demonstrate special circumstances and an exceptionally strong case. In the case of
Kamau Mucuha vs Ripples Limited (1993) eKLR, Hancox CJ, stated as follows on the issue of grant
of mandatory injunctions at an interlocutory stage;

Speaking for myself, I entirely agree that, historically, the principles laid down with regard to
temporary mandatory injunctions are that they will only be granted exceptionally and in the
clearest cases. In Canadian Pacic Railway v Gaud [1949] 2KB,Cohln LJ said at page 249:

I entrely agree………………………….. that the granting of a mandatory injunction

on interlocutory relief is a very exceptional form of relief to grant, but it can be
granted.”

6. In the case of Shepherd Homes vs Sandham (1970) 3 WLR 348) the court held that;

…… .... if a mandatory injunction is granted on motion, there will normally be no question

of granting a further mandatory injunction at the trial; what is done is done and the plainti
has, on motion, obtained once and for all the demolition or destruction that he seeks. Where

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 an injunction is prohibitory, however, there will often still be a question at the trial whether
the injunction should be dissolved or contained.”

7. I am alive to the above principles in granting a mandatory injunction. The plaintis produced two
witnesses. The 31st plainti, PW1 who testied that he has lived on the suit property since 1980 and
had cultivated crops before they were all demolished on 10/2/2020 without notice. He narrated the
series of events of how they went to an Organization named Haki Yetu who tried to assist in seeking
compensation for the damages they incurred but were unable. PW2, the 1st plainti testied that at
the material date, the defendants trespassed onto their property and demolished their structures. He
explained that there was a wall between the suit property and the airport which was the boundary.
He also claimed that it was ancestral land. The defendant called one witness Peter Wafula DW1 who
vehemently denied that the defendant trespassed onto the suit property. He alleged that the defendant
was conducting stabilization of soil within their boundaries and that the allegation of destruction of
homes and crops are false hoods.

8. The plaintis’ witnesses admitted that they do not have title to the suit property. The photographs
PExh 3 produced by PW2 are undated and it is not possible to tell from the photographs when the
demolitions happened. There is no description and /or title deed of the suit property which was
produced in court. There is no surveyors report produced either this court cannot determine the
location nor the ownership of the suit land. It is therefore impossible to determine whether or not
there was any illegal eviction if at all. I nd that the plaintis have failed to establish their case on a
balance of probabilities and I dismiss it with costs.

9. It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 25TH DAY OF JANUARY 2024.
N.A. MATHEKA
JUDGE

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