[2006] KEHC 495 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success by demonstrating ownership of the land and that the defendant entered, damaged, and interfered with the property without notice or consent, contrary to statutory requirements. The court held that the defendant's...
Source-derived case information.
- Citation
- [2006] KEHC 495 (KLR)
- Parties
- Plaintiff: David Mutuku Nzau; Defendant: Kenya Power & Lighting Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 90 of 2006
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- injunction granted
- Legal Topics
- Trespass to Land, Injunctive Relief, Compulsory Acquisition, Compensation for Land, Electricity Infrastructure, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mutuku Nzau
Plaintiff
Kenya Power & Lighting Co. Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the defendant trespassed onto the plaintiff's land without consent or notice as required by law.
- 2 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from further acts of trespass or damage.
- 3 Whether the defendant's actions caused or would cause irreparable harm to the plaintiff.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success by demonstrating ownership of the land and that the defendant entered, damaged, and interfered with the property without notice or consent, contrary to statutory requirements. The court held that the defendant's actions had caused and would continue to cause irreparable harm to the plaintiff, justifying the grant of a temporary injunction. The absence of any opposition from the defendant further supported the plaintiff's case. The court concluded that the appropriate remedy was to restrain the defendant from further acts of trespass or interference pending the determination of the main suit.
Court Disposition
injunction granted
Orders
- An injunction is issued restraining the defendant, its servants and/or agents from further destruction or interference with the plaintiff's land pending determination of the suit.
- Orders are issued in terms of prayer No. 3 and 5 of the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Case 90 of 2006
DAVID MUTUKU NZAU …………………………….. PLAINTIFF
VERSUS
KENYA POWER & LIGHTING CO. LT.D.…...…. DEFENDANT
R U L I N G
The application is dated the 19. 9.2006 and is brought by the plaintiff who seeks an injunction order against he defendant.
The plaintiff is the registered proprietor of a piece of land known as Plot No. 1056/Iveti/Kololini situated in Kabyani in Machakos District. The Defendant is a limited liability publiccompany which is licensed to generateand supply electricity to Kenyans. The plaintiff’s case is that the defendant entered plaintiff’s land aforementioned on 15. 9.2006 and started to cut down plaintiff’s trees, to dig holes for fixing electricity poles and dropping poles on the land ready to be fixed into the holes. The defendant is alleged to have also destroyed part of the fence protecting plaintiff’s land to be ableto gain entry into the land. Defendant further deponed in his supporting affidavit, that in doing all what is stated above, the defendants had not given any notice to the plaintiff nor obtained any permission or consent to do so from him. The plaintiff also claimed that he had not been approached to negotiate compensation for the said encroachment by the defendant as provided under the law.
On 19. 9.2006 the plaintiff approached this court ex-parte and obtained interim injunction orders restraining the defendant from continuing to trespass on the plaintiff’s land or continuing to do any act of trespass like digging more electric pole holes or cutting or destroying the fence or doing any other or further damage on the plaintiff’s land until the main application would be heard inter-partes on 26. 9.2006.
It is further on the record that the defendant was properly served but neither filed a replying affidavit to oppose the application nor attended court for the same reason during the prosecution of this application.
I have considered the material before me. I accept that the land in question L.R. Eveti/Kalolini/1056 is registered in and belongs to the plaintiff. I also accept as true that the defendant on 15. 9.2006 trespassed into the plaintiff’s said land, destroyed plaintiff’s fence, dug holes on it to fix electric poles and deposited electric poles besides destroying other growing trees and plants on the land. Finally, I accept and believe as true that the defendant did the above without first serving the plaintiff with prior notice as required under Section 45 of the Electric Power Act, 1997.
Taking all the above into account in the face of plaintiff’s prayers for a temporary injunction to restrain defendant, its servants and/or agents from proceeding with further destruction, or interference with or upon the plaintiff’s aforementioned land, I have come to the conclusion that the plaintiff has demonstrated a prima facie case with a probability of success. I also hold that the defendant’s actions have done and/or will do irreparable injury to the plaintiff before this case is determined. And finally, the better and more convenient option in the meantime is that the defendant be restrained as prayed until this case is finally decided.
Taking into account also that the defendant did not defend the case, which indicates that they do not mind the injunction orders being issued, it’s the view of this court that this application should succeed.
Accordingly, injunction orders are ordered to issue in terms of prayer No. 3 and 5 of this application. Orders accordingly.
Dated and delivered at Machakos on the 22nd day of November 2006.
D.A.ONYANCHA
JUDGE