[2012] KEHC 5004 (KLR)
The court found that the plaintiff, as the registered owner of the suitland, had established a prima facie case against the defendant. The defendant's construction activities in front of the plaintiff's shop, if allowed to continue, would block access to the shop, interfere with drainage, and risk flooding, thereby...
Source-derived case information.
- Citation
- [2012] KEHC 5004 (KLR)
- Parties
- Plaintiff: Alikhan Rahimkhan Jindkhan; Defendant: County Council of Kwale
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 33 of 2012
- Procedural Posture
- Civil Case / Interlocutory Application for Temporary Injunction
- Outcome
- Application allowed. Temporary injunction granted.
- Judges
- F Tuiyott
- Legal Topics
- Temporary Injunctions, Proprietary Rights, Nuisance, Access to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alikhan Rahimkhan Jindkhan
Plaintiff
County Council of Kwale
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from constructing structures that block access to his property.
- 2 Whether the defendant's actions amount to a nuisance and infringement of the plaintiff's proprietary rights.
Ratio Decidendi
The court found that the plaintiff, as the registered owner of the suitland, had established a prima facie case against the defendant. The defendant's construction activities in front of the plaintiff's shop, if allowed to continue, would block access to the shop, interfere with drainage, and risk flooding, thereby causing irreparable harm and constituting a nuisance. The defendant's conduct infringed upon the plaintiff's proprietary rights. Given the uncontested nature of the application and the evidence presented, the court was satisfied that the requirements for granting a temporary injunction had been met and accordingly restrained the defendant from further construction that would...
Court Disposition
Application allowed. Temporary injunction granted.
Orders
- The Defendant is restrained from constructing a building and/or constructing structures in any manner that interferes, blocks or hinders access to the Plaintiff's plot and/or premises on a portion of Plot No. Kwale/Ukunda/690 pending the hearing hereof.
- Costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 33 OF 2012
ALIKHAN RAHIMKHAN JINDKHAN …………………..............................…….. PLAINTIFF
- Versus -
COUNTY COUNCIL OF KWALE …………………………........................…….. DEFENDANT
RULING
The plaintiff is the owner of Kwale/Ukunda/690 (the suitland). On it stands his shop. It is alleged by him that the Defendant is carrying out construction in a manner that is blocking access to the shop.
So the plaintiff has filed suit against the Defendant and in the meantime seeks the following orders in the application of 28th February 2012-
“That the Honourable Court do issue a temporary injunction against the defendants herein, its servants and/or agents restraining them from constructing a building and/or constructing structures or in any other way from dealing with or interfering with a road reserve adjacent to the Plaintiffs plot and or premises on a portion of Plot No. Kwale/Ukunda/690 pending the hearing and determination of this application.”
The application is uncontested and the Defendants did not attend court or file any defence or reply notwithstanding that they were served on 1st March 2012.
The uncontroverted story of the plaintiff is that the Defendants are constructing structures infront of his shop. That the suitland adjoins the Ukunda-Lunga Lunga highway. That this construction, if allowed to continue, will completely block off the entrance to his shop. That his business will suffer and so will he. In addition the construction interferes with drainage from the plot and the shop is at a risk of flooding.
The plaintiff has made out a prima facie case against the Defendants. He is the registered owner of the suitland. The conduct of the Defendant has caused him a nuisance and infringes, limits, or restricts the enjoyment of his proprietory rights. For this reason I am inclined to grant the orders sought.
The application is allowed in the following terms; the Defendant is restrained from constructing a building and/or constructing structures in any manner that interferes, blocks or hinders access to the Plaintiffs plot and or premises on a portion of Plot No. Kwale/Ukunda/690 pending the hearing hereof.
Costs in the cause.
Dated and delivered at Mombasa this 23rd day of March, 2012.
F. TUIYOTT
JUDGE
Dated and delivered in open court in the presence of:-
Mkan for Plaintiff
No appearance for Defendant
Court clerk - Moriasi
F. TUIYOTT
JUDGE