[1995] KEHC 8 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE 631 OF 1994

1. DAVID YATES

2. HARDY HAFNER

3. ADOLF KIMMELMANN

4. JOSEPH MUTTUKU

5. GUNTHER KOLBERG

6. G. NJUGUNA ............................................... PLAINTIFFS

Versus

PETER MUTUNGA GACHIGIt/a

PEE MCA MOTEL CLUB ................... DEFENDANT

RULING

In this application brought under Order 39 rules 3 & 4 of the Civil Procedure Rules and under Section 3A of the Civil Procedure Act, the Applicant/Defendant is asking for orders discharging the injunction issued by this court on the 21st of October, 1994.

Such orders were as follows:-

"1. The Defendant/Respondent, his servants, agents or otherwise be and are hereby restrained by injunction from playing or permitting to be played loud blaring disco music from dusk to dawn on Plot Number 616 Mtwapa in premises known as Peemca Motel Club.

2. The Defendant/Respondent is hereby permitted to play soft music on very minimal sound on the suit premises till the pending suit is heard and determined."

Although the chamber application brought by the Plaintiffsdated 13th of October, 1994 which lead to the above orders was dulyserved on the Defendant/Applicant herein, it was then not opposed.

However, rule 4 of Order 39 of the Civil Procedure Rules is wide andenough and covers the present application. It is as follows:-

"4. Any order for an injunction may bedischarged, or varied, or set aside by thecourt on application made thereto by anyparty dissatisfied with such order."

This means that even though the initial application was not opposed,the subsequent order that was issued can still be varied or setaside if sufficient cause is shown by the party so affected.

In the present application, the Defendant alleges thatthe application for injunction which was granted by the court, wasnot brought by the Plaintiffs in good faith. He depones that thePlaintiffs other than the 2nd Plaintiff, have been incited againsthim by the 3rd Plaintiff Mr., Adolf Kimmelmann who had previouslyapproached him to buy his premises but he refused. The 3rd Plaintiffthen personally assured him that he would use his influence tofrustrate his business. He goes on to say that this would explainwhy the Plaintiffs have opted to ignore another Bar and Restaurantknown as Burn-Off-Bar & Restaurant is on a much more elevated placeand plays music at a level more or less like his and yet it is onlywithin a 50 meter radious from his restaurant. He depones that theother Plaintiffs in that case may have been used by Mr. Kimmelmannwithout their knowledge. He annexed a letter from the 2nd Plaintiff to show that he had not consented to being party to the suit andhas in fact no complaints at all against the Defendant.

The Defendant mentions that he does not play loundblaring music from his Club and that to the best of his knowledge,the level of sound from his musical implements has been reasonableas they only play at position one on the amplifier. He goes on tosay that his Club is in an enclosure which has wooden walls whichdefinitely reduces any sound that may go out.

It is the contention of the Defendant that the Plaintiffshave proceeded against him on the basis of untruths. For example,the 3rd and 4th Plaintiffs live about 1/2km away from his Club whilethe 6th Plaintiff lives at Nyali which is well over the 200 metersthey allege. The 1st and 5th Plaintiffs are unknown to him andmust either be landlords or people who live far away from mtwapa.He points out that his closest neighbour, the 2nd Plaintiff has nowconfirmed that he has no complaints against him as far as thelevel of sound from music in his house is concerned. He urged thecourt to discharge the injunction orders that were made against him.

The Plaintiffs other than the 2nd Plaintiff who does not want to pursue the case maintain that they all reside within a radious of 200 meters from the Defendant's Club. They maintain that they have been deeply affected by the nuisance emanating from the premises of the Defendant in form of loud blaring music which is always played from duck to dawn. They all agreed together with the 2nd Plaintiff to cause the Defendant to reduce the level of musicsound from his premises and when this failed, they decided to suehim. It is their contention that even the 2nd Plaintiff, Mr. Hafnerhad agreed to have the suit herein filed against the Defendant buthe is now backing out simply because he has been evicted from thehouse where he was staying on Plot No.618 and the Defendant hasnow agreed to accommodate him in one of the rooms from this Club.They further say that the 2nd Plaintiff is now broke filing theattachment of his household goods for non-payment of rent and isnow living on charity and debts. They maintain that there is nosound proofing barrier in the suit premises and that the noiseemanating from the said premises is simply irritating.

I think that it is settled law that an applicant seekingan equitable remedy of injunction, must come to court with cleanhands.

It has been argued in this application that the Applicants/Plaintiffs in moving the court in this case had acted onbad faithas the 3rd Plaintiff had vowed to punish the Defendant who hadrefused to sell to him the suit premises. In other words, it wasalleged that he had conspired with the rest of the Plaintiffs toinstitute the suit against the Defendant so as to punish him forrefusing to sell to him the suit premises. The Defendant depones inparagraph 8 as follows.

8. ........................... I truly believe that the Plaintiffs here are motivated by an ulterior motiveagainst me, as I have already elaboratedin my defence, the 3rd Plaintiff is the onewho has incited them (even without theirknowledge) to bring this suit against me.The 3rd Plaintiff has laboured ill-will againstme since my refusal to sell to him the suitpremises. He has assured me personally thathe would use his influence to frustrate mybusiness. In fact this explains to me whythe Plaintiffs have opted to, ignore another Bar& Restaurant within a 50 meter radius frommine called Burn-Off-Bar and Restaurant, whichis in a more elevated place, plays music ata level more or less like mine and its soundtravels further, but have gone ahead to sue me".

In his statement of defence dated 8th of October, 1994, stated in paragraph 8 as follows:-

"8. The Defendant states that the whole suit wasinstigated by the 3rd Plaintiff out of his ill-will, spite and malice against the Defendantsimply because the Defendant had earlier onrefused to sell to the 3rd Plaintiff the suitpremises together with another property locatedin Shanzu belonging to the Defendant. Sincethe said refusal, the 3rd Plaintiff has threatenedthe Defendant that the 3rd Plaintiff having beena Commissioner of Police in Germany and nowworking for the International Police, he has highconnections in the country which he would useto frustrate the Defendant's businesses. TheDefendant states that it was the 3rd Plaintiff

" Who went round collecting signatures from the Others so as to sue the Defendant and evenwent ahead to add the list of Plaintiffs thename of the 2nd Plaintiff who was not evenaware of the suit?"-

Although the 1st Plaintiff substantially replied to theaverments of facts by the Defendant in his supporting affidavit, Iobserve that there was no attempt made to specifically deny theallegation of bad faith and ill-will on the part of the 3rd Plaintiff.Paragraph 8 of the Statement of Defence has equally not been deniedin the pleadings as there was no reply to the Defence filed.Ibelieve that the allegation by the Defendant that the suit againsthim has been maliciously instituted at the instigation of the 3rdPlaintiff was such a serious allegation that ought to have beendenied specifically if it was false. This was not done and in myrespectful view, it seriously dents the Plaintiff’s case before thecourt.

Furthermore, one of the Plaintiffs in the suit, the 2ndPlaintiff has now stated that he has no complaints at all againstthe Defendant. I accept the possible reasons for his about-turnwhich shows that he has done so for some financial gain from theDefendant as he is now in an awkward financial position. I do nottherefore place much reliance on his intention to withdraw from thesuit. However, the fact that the 6th. Plaintiff does not himselfreside near the Club in dispute and is therefore not personally affectedby the sound of music from the Club as he stays far away in Nyaliis another matter that dents the case for the Plaintiffs

The 3rd matter which I believe also casts some doubt inthe Plaintiffs' case is the distance of another Bar and Restaurant,Burn-Off-Bar within the locality as Peemca Motel Club which alsooperates some disco music which surprisingly does not attract anycomplaints from the Plaintiffs.

I have given serious consideration to all the mattersthat were urged before this court in this application including theallegations made by the Plaintiffs that the Defendant has breachedthe court order which they now seek to be discharged or varied.I believe that the truth as to whether or not the sound of musicfrom the suit premises is causing a nuisance in the neighbourhoodwould be determined conclusively by the court after the case isfully heard. As matters are, 1 think that there is some considerabletruth in the allegation made by the Defendant that the suit againsthim has been instigated by the 3rd Plaintiff who has a personalinterest in the suit premises which he wanted to buy from him buthe refused. Since then the 3rd Plaintiff has developed a grudgeagainst him and is out to ruin his business as a way of punishinghim for refusing to sell to him the premises.

Where in a suit filed by several Plaintiffs all seekingan equitable remedy, it is shown as in this case, that one of themis acting maliciously in the case in furtherance of other interestsnot disclosed in their joint Plaint, the court can perfectly, so Ibelieve, refuse to grant the remedies sought and where such remedyhad been granted, it can be discharged.

In this case, it appears to me that the 3rd Plaintiffis pursuing interests other than those of co-Plaintiffs in the suit.Prima facie, he is acting maliciously against the Defendant withwhom he had previously disagreed. In the circumstances, I thinkthat the interest of justice will be served by discharging theorders that had been given restricting the Defendant only to playsoft music at his premises.

For reasons given, I allow this application and discharge the injunction that I had imposed on the Defendantregarding the operation of his disco music at Peemca Motel Club.

Costs of this application will be costs in the cause.It is so ordered;

DATED and delivered at Mombasa this 30th day of January, 1995.

S.O.OGUK

JUDGE.