[2005] KEHC 948 (KLR)
The court found that only three of the six plaintiffs had locus standi, as only they had annexed valid licenses from the 1st defendant. The application by the other three plaintiffs was dismissed for lack of standing. Regarding the substantive relief sought, the court held that there was no evidence that the 1st...
Source-derived case information.
- Citation
- [2005] KEHC 948 (KLR)
- Parties
- Plaintiff: Bruce Onyango Okoyo t/a Green Steps Investments; Plaintiff: Jecinta Wanza Makenzie t/a Senta Auto & Cleaner Services; Plaintiff: Kagili Titus Kahiro; Plaintiff: Joseph Muriithi Gicheru; Plaintiff: James Kioge Karuga t/a Quicker & Cleaners Services; Plaintiff: Fredrick Chanzu; Defendant: Town Clerk, City Council of Nairobi; Defendant: Nairobi Water Company; Defendant: Nairobi City Water & Sewerage Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1141 of 2005
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- ARM Visram
- Legal Topics
- Interlocutory Injunctions, Locus Standii, Supply of Utilities, Licensing of Businesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bruce Onyango Okoyo t/a Green Steps Investments
Plaintiff
Jecinta Wanza Makenzie t/a Senta Auto & Cleaner Services
Plaintiff
Kagili Titus Kahiro
Plaintiff
Joseph Muriithi Gicheru
Plaintiff
James Kioge Karuga t/a Quicker & Cleaners Services
Plaintiff
Fredrick Chanzu
Plaintiff
Town Clerk, City Council of Nairobi
Defendant
Nairobi Water Company
Defendant
Nairobi City Water & Sewerage Company Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs have locus standi to bring the application for interlocutory relief.
- 2 Whether the plaintiffs have established a prima facie case for grant of a mandatory injunction to compel reconnection of water supply.
- 3 Whether the plaintiffs are entitled to an injunction restraining eviction or interference with their businesses.
Ratio Decidendi
The court found that only three of the six plaintiffs had locus standi, as only they had annexed valid licenses from the 1st defendant. The application by the other three plaintiffs was dismissed for lack of standing. Regarding the substantive relief sought, the court held that there was no evidence that the 1st defendant had cancelled the licenses or evicted the plaintiffs, and thus no cause of action was disclosed against the 1st defendant. As to the claim for mandatory injunction against the 2nd and 3rd defendants, the plaintiffs failed to show any contractual or legal entitlement to water supply for commercial use, nor did they establish a prima facie case as required by the...
Court Disposition
application dismissed with costs
Orders
- The application by Kagili Titus Kahiro, Joseph Muriithi Gicheru, and Fredrick Chanzu is dismissed with costs for lack of locus standi.
- The application against the 1st defendant is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Suit 1141 of 2005
BRUCE ONYANGO OKOYO T/A
GREEN STEPS INVESTMENTS ………....…………….........….….….… 1ST PLAINTIFF
JECINTA WANZA MAKENZIE T/ASENTA
AUTO & CLEANER SERVICES…….................................................…… 2ND PLAINTIFF
KAGILI TITUS KAHIRO …………………….…………...........…….….... 3RD PLAINTIFF
JOSEPH MURIITHI GICHERU ………………………...........………...… 4TH PLAINTIFF
JAMES KIOGE KARUGA T/AQUICKER & CLEANERS SERVICES …5TH PLAINTIFF
FREDRICK CHANZU ……………………………………..........….…….. 6TH PLAINTIFF
VERSUS
TOWN CLERK, CITY COUNCIL OF NAIROBI ................................... 1ST DEFENDANT
NAIROBI WATER COMPANY …………………………............…… 2ND DEFENDANT
NAIROBI CITY WATER& SEWERAGE COMPANY LIMITED …… 3RD DEFENDANT
RULING
In this application dated 19th September, 2005, and made under Order 39 Rules 1, 2, 2A, and 3 of the Civil Procedure Rules, the six named Plaintiffs seek the following main orders:
“1. … 2. THAT the plaintiffs be allowed to continue operating their duly licensed businesses forthwith until the hearing and determination of this Application.
3. THAT the 2nd and 3rd defendants herein be compelled to reconnect and continue supplying the water services to the plaintiffs herein until the hearing and determination of this Application.
4. THAT a mandatory injunction do issue against the defendants both jointly and severally restraining them by themselves, their agents, servants, employees and or other person or entity whatsoever from tampering with and interfering with the business and property in any way whatsoever or at all or forcefully evicting the plaintiffs from their business premises until the hearing and determination of this suit”.
In the supporting affidavit sworn by the first plaintiff, on behalf of all the plaintiffs, the plaintiffs say that they are licensed by the 1st Defendant to carry on the activities of carpet cleaning, upholstery and cleaning services, auto washing and other professional and technical services, and that by its public notice dated 6th September, 2005, the third defendant has ordered their eviction from their respective “car wash bays” in disregard to the licenses they hold for the period ending 31st December, 2005.
However, before I go further, let me note that the annextures to the supporting affidavit show that only three of the six plaintiffs are indeed the licenses of the 1st Defendant, and therefore, entitled to bring this suit against the defendants. The other three, namely Kagili Titus Kahiro, Joseph Murithi Gicheru, and Fredrick Chanzu have not annexed their licenses and have no locus standie to institute these proceedings and accordingly their application is hereby dismissed with costs to the defendants.
With respect to the three “licensees” namely the 1st, 2nd and 5th Plaintiffs, I see nothing in their affidavit or the Plaint to constitute a cause of action against the 1st Defendant. There is nothing to show that the 1st Defendant has “cancelled” their licenses, or evicted them, and accordingly, their application against the 1st Defendant is dismissed with costs. As to their application for a mandatory injunction against the 2nd and or the 3rd Defendants, requiring those defendants to reconnect and continue the supply of water to them to enable them continue with their car wash businesses, they have not annexed any contract or agreement with these defendants for the supply to them of water for commercial use, and have, therefore, not made out a prima facie case with a probability of success.
The defendants, on the other hand, have shown that because of a shortage in the supply of fresh water, they are unable to supply water for non-essential commercial use, such as “car-washes”. They rely on the Water Act, 2003 which empowers them to regulate the supply and consumption of water within Nairobi.
The Applicants have not satisfied the conditions outlined in the case of Giella vs Cassman Brown (1978) E A 358 for the grant of an injunction, and have not satisfied this court that they have a prima facie case with a probability of success. In any event, if they are successful eventually damages are an adequate remedy.
This application is, therefore, dismissed with costs.
Dated and delivered at Nairobi this 2nd day of November, 2005.
ALNASHIR VISRAM
JUDGE