[2008] KEHC 1857 (KLR)
The court found that the plaintiff sought a mandatory injunction against both defendants, but such relief is only granted in special circumstances. The court noted that the legality of the plaintiff's sewer line construction was disputed by both defendants, with allegations of illegality and lack of proper...
Source-derived case information.
- Citation
- [2008] KEHC 1857 (KLR)
- Parties
- Plaintiff: David Njoroge Wambia; Defendant: Lilian N. Kibugu; Defendant: Nairobi Water Sewerage Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 10 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Injunction
- Outcome
- application dismissed with costs to the 1st and 2nd defendants
- Legal Topics
- Wayleave Disputes, Mandatory Injunctions, Illegal Construction, Sewerage Infrastructure, Allocation of Land, Environmental Nuisance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Njoroge Wambia
Plaintiff
Lilian N. Kibugu
Defendant
Nairobi Water Sewerage Co. Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a mandatory injunction restraining the 1st defendant from interfering with the sewer line.
- 2 Whether the sewer line constructed by the plaintiff was illegal and passed through the 1st defendant's property without authority.
- 3 Whether the plaintiff came to court with clean hands given the alleged illegality of the sewer line construction.
Ratio Decidendi
The court found that the plaintiff sought a mandatory injunction against both defendants, but such relief is only granted in special circumstances. The court noted that the legality of the plaintiff's sewer line construction was disputed by both defendants, with allegations of illegality and lack of proper allocation. The court determined that this central issue required a full trial for proper resolution and that the plaintiff had not established a prima facie case with a probability of success. Furthermore, the court observed that the plaintiff did not approach the court with clean hands, given the allegations of illegality. Consequently, the court declined to grant the mandatory...
Court Disposition
application dismissed with costs to the 1st and 2nd defendants
Orders
- The application for mandatory injunction is dismissed.
- Costs awarded to the 1st and 2nd defendants.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 10 of 2007
DAVID NJOROGE WAMBIA ………….............………… PLAINTIFF
VERSUS
LILIAN N. KIBUGU ………………..……………… 1ST DEFENDANT
NAIROBI WATER SEWARAGE CO. LTD. …….. 2ND DEFENDANT
RULING
APPLICATION FOR INJUNCTION
DATED 9 JANUARY 2007
1. The dispute that has arisen between David Njoroge Wambia the plaintiff/applicant herein and Lillian N. Kibugu the defendant1/respodennt herein concerns a “sewer line.”
2. The applicant is the alleged owner of Plot B-08 situated in Mathare North Nairobi. He was allocated this land by the City Council of Nairobi ( then the Nairobi City Commission) sometime in 1993. It is not disputed that he constructed a three storey building which he uses for education purposes and alleges he has 700 children. He constructed the sewer line of the said building to the main City Council sewer line which has a way leave. This way leave, according to the 1st defendant is illegal and passes through her land property Plot 2-299.
3. The defendant No.1 is alleged to have destroyed the sewerage line causing the plots to experience a land environmental concern.
4. The plaintiff sued the defendant 1 to restrain her from interfering with the sewer line. He also sued the 2nd defendant the newly formed water and sewerage company Ltd to restore his sewage.
5. The 1st defendant in reply stated the plaintiffs land was originally a play ground. His allocation was illegal and as such never provided for a school sewage.
6. It was further noted that the sewage was illegally constructed.
7. The 2nd defendant stated that both parties are in the wrong. Both have constructed illegal sewage lines respectively. The case herein concerns the plaintiff and the plans submitted did not have a sewerage line number. He did not come to court with clean hands and prayed his application be duly dismissed.
II: Opinion
8. The court notes the prayers sought by the plaintiffs amounts to a mandatory injunction against the 1st and 2nd defendant. Mandatory injunction in Kenya are not issued unless in special circumstances.
9. The question arises as to whether the plaintiff sewerage line was illegally constructed. The 1st and 2nd defendant state it was illegally so constructed. This issue requires to go for full trial. There is though no prima facie case made out with a probability of services.
10. This court declines to issue orders of mandatory injunction against the 1st and 2nd defendant. The application is hereby dismissed with costs to the 1 and 2 defendant.
DATED THIS 11TH DAY OF JUNE 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
R. K. Macharia instructed by Macharia & Co. Advocates for the plaintiff
J.K. Mwangi instructed by J.K. Mwangi & Co. Advocates for the 1st defendant/Respondent – present
K. Mbugua instructed by K. Mbugua & Co. Advocates for the 2nd defendant/respondent - present