Joseph Maina Kariuki,Martin Mutiga,Bosco Ndalana,Bernard Matheka,Geoffrey Arasa,Charles Maru,Raphael Kimeu,Simon Kabaya,Alexander Mbogo,Charles Maru,John Mutungi,Jane Mwongela,Jannifer Muli,Mwangi Munuhe,Marin Mboloi,Andrew Nzomo,Thomas Mutie,Rogers Mutie ,John Musila,Samuel Mucheru, & George Omondi v Akwana Housing Cooperative Society & County Government of Machakos [2017] KEELC 2866 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC CASE NO. 133 OF 2016

JOSEPH MAINA KARIUKI ……………………...………….1ST PLAINTIFF

MARTIN MUTIGA………………………………….......…….2ND PLAINTIFF

BOSCO NDALANA………………………………...…...…..3RD PLAINTIFF

BERNARD MATHEKA…………………………...……….....4TH PLAINTIFF

GEOFFREY ARASA……………………………...……...…..5TH PLAINTIFF

CHARLES MARU ………………………………...…….......6TH PLAINTIFF

RAPHAEL KIMEU…………………………………...……...7TH PLAINTIFF

SIMON KABAYA …………………………………...…........8TH PLAINTIFF

ALEXANDER MBOGO ……………………………...…......9TH PLAINTIFF

CHARLES MARU …………………………………...…....10TH PLAINTIFF

JOHN MUTUNGI ……………………………………........11TH PLAINTIFF

JANE MWONGELA ………………………………….......12TH PLAINTIFF

JANNIFER MULI ……………………………………........13TH PLAINTIFF

MWANGI MUNUHE…………………………………........14TH PLAINTIFF

MARIN MBOLOI …………………………………............15TH PLAINTIFF

ANDREW NZOMO ………………………………............16TH PLAINTIFF

THOMAS MUTIE …………………………………..........17TH PLAINTIFF

ROGERS MUTIE …………………………………….......18TH PLAINTIFF

JOHN MUSILA …………………………………….…....19TH PLAINTIFF

SAMUEL MUCHERU ……………………………...........20TH PLAINTIFF

GEORGE OMONDI ……………………………….....….21ST PLAINTIFF

VERSUS

AKWANA HOUSING COOPERATIVE SOCIETY.........1ST DEFENDANT

COUNTY GOVERNMENT OF MACHAKOS…....…....2ND DEFENDANT

RULING

1. The two Applications before me are dated 2nd August, 2016 and 20th September, 2016.

2. In the Application dated 2nd August, 2016, the Plaintiff is seeking for the following orders:

a. That this Honourable Court be pleased to issue restraining orders barring the 1stDefendant, its agents, servants or those claiming under them from erecting a mosque on L.R. No. 20606/88 pending the hearing and determination of this Application, and of the main suit.

b. That a mandatory injunction do issue directing the 1stDefendant to pull down, remove and clear from L.R. No. 20604/88 herein referred to as the suit land all those structures making up the mosque, within fourteen(14) days of the order.

c. That costs of this Application be in the cause.

3. The Application is premised on the grounds that the 1stDefendant has commenced construction of a mosque on the suit land; that the Plaintiffs are the registered proprietors of the adjoining land known as KEEKROCK COURT and that the construction of the mosque on the said land infringes on the Plaintiffs right to property because the area in question is a residential area.

4. The Application is supported by the Affidavit of the 1st Plaintiff who has deponed that he is the registered owner of the land known as L.R. No. 20604/260 situate in MavokoSub-County; that the 1stDefendant is the owner of the neighbouring land being L.R. No. 20604/88 and that the otherPlaintiffs also own land in the same residential estate.

5. According to the Plaintiffs, the 1stDefendant illegally sought approval for change of user of L.R. No. 20604/88 from residential to religious purposes; that neither the 1stDefendant nor the 2nd Defendant informed them about the proposed change of user and that they stand to suffer irreparably if the mosque is constructed in their area which is predominantly non-Muslim.

6. It is the Plaintiffs’ case that the construction of the mosque will interfere with theirconstitutional right to quiet and peaceful possession of their properties.

7. In theApplicationdated 20thSeptember, 2016, the Plaintiffs are seeking for an order restraining the 1stDefendant from using and worshipping in the mosque erected on L.R. No. 20606/88 pending the hearing of the suit.

8. The Plaintiffs are also seeking for a mandatory injunction directing the 1stDefendant to pull down, remove and clear from L.R. No. 20604/88 all those structures making up the mosque.

9. According to the Plaintiffs, as at 2oth September, 2016, the mosque had already been completed; that unless the Defendant is restrained, he is likely to start using the mosque to the detriment of the Applicants and that the ordersshould be issued so as not to render the suit nugatory.

10. In response, the 1st Defendant’s Secretarydeponedthat the said mosque has already been constructed; that the change of user for the land where the mosque is located was duly sought and thatafter the Environmental Impact Assessment was conducted, the 1stDefendant was allowed to build the mosque.

11. In its response, the 2nd Defendant’s Sub-County administrator deponed that before the construction of the mosque, the 2nd Defendant received an Application for change of user of L.R. No. 20604/88 from residential to religious use; that the members of the public were duly notified of the intended change of user via an advertisement in the local media and that the Applicants did not object.

12. The 1st Defendant’s Secretary deponed that every citizen is entitled to freedom of worship and association; that the said area has more than five (5) churches and that the residents ofSabaki should not be restrained from worshipping in the mosque.

13. In his submissions, the Plaintiffs’ advocate submitted that the 1stDefendant’s change of user was illegal; that the notice that was published in the newspaper was not adequate because not all Kenyans read newspaper and that Section 4(3) of the Fair Administrative Act was not complied with.

14. Counsel submitted that NEMA has never approved the constructionof the mosque in the area and the Applications should be allowed.

15. The 1stDefendant’sadvocate submitted that the Defendant has exhibited the notice of change of user, the E.I.A Report, the licence and the approved building plans; that the orders being sought have been overtaken by events and that the order of mandatory injunction is the final prayer which has been sought in the Plaint.

16. In the Application dated 2nd August, 2016, the Plaintiffs sought for an order restraining the Defendants from erecting a mosque on L.R. No. 20606/88 pending the hearing of the suit.

17. In the subsequent Application, the Plaintiffs are seeking for a mandatory injunction directing the Defendants to pull down the mosque which has been constructed on L.R. No. 20606/88.

18. In the Application dated 20th September, 2016, the Plaintiffs admitted that the impugned mosque has since been constructed to completion.

19. It is trite that a prohibitory injunction cannot be granted in a situation where the act complained of has already occurred.

20. In the instant case, the mosque which is standing on L.R. No. 20604/88 has already been constructed.  Consequently, a prohibitory injunction cannot issue.

21. In any event, I am not convinced that the Plaintiffs have a prima facie case with chances of success considering that the only reason they are opposed to the constructionof the mosque is because they are Christians.

22. Indeed, the Plaintiffs have not denied that there are more than five churches in their neighbourhood.

23. If that is so, and considering that the 1st Defendant has exhibited the notice which was published in the daily newspaper for the change of user of L.R.No. 20604/88 from residential purposes to religious purposes, the Plaintiffs should have raised their objections then.

24. Having obtained the change of user for L.R. No. 20606/88, I find that the orders being sought by the Plaintiffs in the two Applications cannot issue at this stage.

25. The issue of whether NEMA granted to the 1stDefendant a licence before it commenced the construction of the mosque can only be determined after trial. Suffice to say that there is an E.I.A Report that was approved by NEMA before the construction of the mosque commenced.

26. In the meantime, the 1stDefendant and its members should be allowed to continue using the mosque for prayers in pursuit of their constitutional right of worshipping.

27. For those reasons, I dismiss the Applications dated 2nd August, 2016 and 20th September, 2016 with costs to the 1st Defendant.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 12TH DAY OF MAY, 2017.

O. A. ANGOTE

JUDGE