The ongoing demolition of palatial houses on the disputed East African Portland Cement Company (EAPCC) land in Mavoko area of Machakos County will continue indefinitely after the Environment and Lands Court dismissed an application to stop it.
Justice Annet Nyukuri said the application by the Aimi ma Lukenya Society, which claims the land in question, did not meet the legal threshold to warrant an injunction.
"Having considered the evidence on the record and the issues raised by the respondents, I am not persuaded that the applicant has put before me any material to restrict the enjoyment of proprietary rights by the first respondent who has shown that they are the registered owners of the land in suit as evidenced by entry number 6 in the title as this entry is not disputed by the applicant.
“There is no evidence to support the plaintiff's claim that it purchased the property in question. Therefore, I find that the applicant has failed to establish a prima facie case. Therefore, the issue of irreparable harm or the balance of convenience becomes moot, as the requirement of irreparable harm is based on a prima facie case. As a result, there is no merit in the application dated October 11, 2023 and I dismiss it with costs to the respondent," Ms Nyukuri said.
The judge revealed that the court had also relied on the conduct of the Aimi ma Lukenya Society in dismissing its application.
She noted that the society had contravened an earlier court order granting it an interim injunction.
"The applicants have confirmed that they are the beneficiaries of an interim order in ELC No 74 of 2014, consolidated with ELC No 10 of 2018. However, in the first respondent's annexure, there were documents purporting to be title deeds showing that the suit properties were sold as late as February 5, 2022 and that several sales had taken place between January 2015 and October 9, 2023 when ELC 74 of 2014 was struck out.
“This evidence was not disputed by the claimant. It is clear that the plaintiff's conduct in violating the status quo orders made in 2015 in ELC No 74 of 2014 shows that it does not deserve an equitable injunction," she told the court, which was packed with Wiper politicians from the area and their supporters.
Machakos Governor Wavinya Ndeti led a team of county government officials to attend the ruling, which was preceded by a prayer session for the victims of the demolitions.
Wiper leader Kalonzo Musyoka represented the Aimi ma Lukenya Society in the application, which followed a ruling by the same court in favour of cement giant EAPCC.
Mr Musyoka had argued that the demolitions, which began last Friday, were a violation of the right to housing and a crime against human rights. But Ms Nyukuri said Mr Musyoka had introduced the human rights issue as an afterthought.
"It should be borne in mind that issues for determination arise from the pleadings. It is true that parties are bound by their pleadings. The issue of the right to housing under Article 43 of the Constitution of Kenya is an argument that arose from the oral submissions of the applicant's counsel,” she said.
The judge added: “That argument, in my view, has no bearing on what the Tribunal was asked to determine in relation to the application of October 11, 2023. That application limited the court itself to an order of interim injunction, restraining the 1st defendant from interfering with the property in suit on the basis that the title held by the plaintiff is valid."
