[2017] KEELC 1769 (KLR)
The court found that while the Plaintiff claimed allocation and occupation of the Suit Property, she failed to provide conclusive title documents. The 3rd Defendant established that the land has been used for public purposes by the Chief’s Office and the community since 2007, and that the pour flash toilet serves an...
Source-derived case information.
- Citation
- [2017] KEELC 1769 (KLR)
- Parties
- Plaintiff: Christine Muthoni Kiama; Defendant: The Cabinet Secretary, Ministry of Interior & Coordination of National Government; Defendant: The Attorney General; Defendant: Nairobi City Water & Sewerage Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 235 of 2017
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Judges
- AK Bor
- Legal Topics
- Interlocutory Injunctions, Public Interest, Land Allocation Disputes, Trespass, Compensation for Land, Community Facilities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Muthoni Kiama
Plaintiff
The Cabinet Secretary, Ministry of Interior & Coordination of National Government
Defendant
The Attorney General
Defendant
Nairobi City Water & Sewerage Company Limited
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff is entitled to an interlocutory injunction restraining the Defendants from interfering with the Suit Property pending determination of the suit.
- 2 Whether closure of the public toilet erected on the Suit Property is justified pending the hearing and determination of the suit.
- 3 Whether the balance of convenience and public interest favour the grant of the orders sought by the Plaintiff.
Ratio Decidendi
The court found that while the Plaintiff claimed allocation and occupation of the Suit Property, she failed to provide conclusive title documents. The 3rd Defendant established that the land has been used for public purposes by the Chief’s Office and the community since 2007, and that the pour flash toilet serves an essential public sanitation function. The court held that closing the public toilet would not serve the public interest and would inconvenience the community and users of the Chief’s Office. The Plaintiff’s loss, if any, could be compensated by damages. The balance of convenience and public interest therefore favoured refusal of the interlocutory injunction. The application...
Court Disposition
application dismissed
Orders
- The application for interlocutory injunction is declined.
- Parties to set down the suit for hearing for determination of ownership of the Suit Property.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 235 OF 2017
CHRISTINE MUTHONI KIAMA..................................................................PLAINTIFF
VERSUS
THE CABINET SECRETARY, MINISTRY OF INTERIOR &
COORDINATION OF NATIONAL GOVERNMENT.........................1ST DEFENDANT
THE ATTORNEY GENERAL............................................................2ND DEFENDANT
NAIROBI CITY WATER & SEWERAGE COMPANY LIMITED....3RD DEFENDANT
RULING
Through the application dated 5/4/2017, the Plaintiff seeks an order of injunction to restrain the 1st and 3rd Defendants from dealing, developing, transferring, or in any way interfering with plot number 1082 under the Soweto Resettlement Scheme (“the Suit Property”). The Plaintiff also seeks that the Cabinet Secretary, Ministry of Interior and Coordination of National Government through the Deputy County Commissioner, Embakasi Sub-county supervises the Nairobi City Water and Company Sewerage Ltd as it is compelled to close and bar the use of the pour flash toilets erected on the Suit Property pending the hearing and determination of this suit.
The Plaintiff was allocated the Suit Property through a letter of allotment issued by the Housing Development of the Nairobi City County and has been paying the annual rates dutifully. The Suit Property borders the Chief’s office at Kayole Soweto, a settlement situated in Embakasi Division. The Plaintiff claims that the 1st Defendant through the Deputy County Commissioner, Embakasi Sub-County and the area Chief Kayole Soweto has encroached onto and trespassed on the Suit Property and fenced it, and that they are continuing to develop it.
Further that under the auspices of the Water and Sanitation Services Improvement Programme financed by the World Bank Group, the 3rd Defendant has illegally erected a pour flash toilet on the Suit Property without the Plaintiff’s authority. The Plaintiff claims that she continues to suffer loss of opportunity to develop the Suit Property and that she stands to suffer greatly as land in that particular settlement is unavailable and expensive hence she cannot be adequately compensated by damages. The application is supported by the Plaintiff’s affidavit in which she admits at paragraph 15 that a pour flash toilet has already been erected on the Suit Property and is in use. She did not annex any title documents save for the card issued by the Nairobi City Council Housing Development Department.
The 3rd Defendant opposed the application and relied on the replying affidavit of its Resident Engineer. The Defendant argues that the Plaintiff previously instituted a suit against the local community leaders being Milimani CMCCC 682 of 2010 over the ownership of the suit plot and that the case was dismissed. The 3rd Defendant maintains that the Suit Property is owned by the Chief’s Office and that it has been developed through the initiative of the community. The 3rd Defendant claims that the Suit Property is Government land. It is stated that the Chief’s Office has been there since 2007. The Defendant argues that if the pour toilets are closed members of the public will suffer greatly and that they will be exposed to challenges pertaining to good hygiene and proper sanitation. The 3rd Defendant argues that closing the public toilet will be against public interest.
The court has considered the application, the affidavit and the submissions of the counsel. The court is of the view that granting the orders for the public toilet to be closed would not be in the best public interest and the common good of the community living in that area. Members of the public who go to seek services from the Chief’s Office will be greatly inconvenienced if the pour flash toilets are closed. The public interest in maintaining the public toilets open for use by members of the public who require such sanitary facilities far outweighs the Plaintiff’s personal interest in developing the Suit Property. The Plaintiff can be compensated by an award of damages.
The court declines to grant the application and directs the parties to set down the suit for hearing when a determination as to who owns the Suit Property can be made. Costs will be in the cause.
Dated and delivered at Nairobi this 25th day of September 2017.
K. BOR
JUDGE
In the presence of: -
Mr. Mburu for the Plaintiff
No appearance for the Defendant
Mr. V. Owuor- Court Assistant