[2000] KEHC 202 (KLR)
The court found that the plaintiffs had demonstrated a prima facie case with a probability of success, as there was no evidence that the approved estate plans had been lawfully varied. The City Council's unilateral allocation of land designated as public open space and parking was not justified. The court held that...
Source-derived case information.
- Citation
- [2000] KEHC 202 (KLR)
- Parties
- Plaintiff: Emma W. Murai & Others (suing on behalf of all Members of Jamhuri Estate Residents Welfare Society); Defendant: Nairobi City Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1390 of 1998
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed; interlocutory injunction granted
- Legal Topics
- Injunctive Relief, Public Land Allocation, Representative Suits, Urban Planning
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emma W. Murai & Others (suing on behalf of all Members of Jamhuri Estate Residents Welfare Society)
Plaintiff
Nairobi City Council
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the City Council can unilaterally alter approved estate plans to allocate public open spaces and parking for private development.
- 2 Whether the plaintiffs are entitled to an interlocutory injunction restraining the defendant from allotting or developing the disputed land pending determination of the suit.
Ratio Decidendi
The court found that the plaintiffs had demonstrated a prima facie case with a probability of success, as there was no evidence that the approved estate plans had been lawfully varied. The City Council's unilateral allocation of land designated as public open space and parking was not justified. The court held that issuing title documents or allowing development would cause irreparable harm to the plaintiffs and complicate the resolution of the dispute. The balance of convenience favored granting the injunction, as the defendant and potential allottees would suffer no loss if restrained pending the hearing and determination of the suit.
Court Disposition
application allowed; interlocutory injunction granted
Orders
- The defendant and would-be allottees are restrained from allotting or developing the disputed land in Jamhuri Estate pending the hearing and determination of the suit, as prayed in prayers (c) and (d) of the Chamber Summons dated 9.11.99.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI MILIMANI LAW COURT
CIVIL SUIT NO. 1390 OF 1998
EMMA W. MURAI & OTHERS……………………………………….1ST PLAINTIFF
JACOB OCHIENG……………………………………………………..2ND PLAINTIFF
D. RATEMO……………………………………………………….……3RD PLAINTIFF
F.S. MUKOLA………………………………………………………….4TH PLAINTIFF
F. LUGONZO…………………………………………………………...5TH PLAINTIFF
L. NJOROGE…………………………………………………………...6TH PLAINTIFF
Suing on behalf of themselves and on behalf of all Members of JAMHURI
ESTATE RESIDENTS WELFARE SOCIETY.
-VERSUS-
NAIROBI CITY COUNCIL………………………………….DEFENDANT
RULING
The applicants are the plaintiffs in HCCC No. 1390 of 1998 in which they have sued the City Council. The application seeks for an injunction to stop the City Council or its agents from going ahead with the allotment of the land in Jamhuri Estate which the plaintiff’s term as ‘public open space’ and ‘parking’. They are also asking that Defendants and the would be allottees be stopped from carrying on any development on these lands until the suit is heard and finalized. The applicants had obtained an order to act on a representative capacity on behalf of the other two hundred interested persons.
On 31. 5.2000 when the matter came for hearing I directed that the applicants cause a notice to be put in one of the daily papers giving notice that this matter will be heard today. This I considered necessary to enable those interested in the matter be they allottees or other interested parties to make appearance or sent representatives.
I am informed by Mr. Murimi the counsel for the applicants that the notice was duly put in the E.A. Standard. The application is based on the facts contained in the affidavit sworn by Emma W. Murai.
In this affidavit the deponent says that the City Council has issued some allotment letters pertaining to the pieces of Lands designated for the public use when the Estate was built. The applicant’s contention is that once plans for an estate are approved by the competent authority, which would include the approval, by the Minister in case of land under Local Authorities, such plans cannot be changed unilaterally.
I find merits in this argument. In this case the lands which are now being allocated were approved by the City Council as part of the estate. For such approval to be complete it must have been approved by the Minister for Local Government.
There is nothing filed to show that the plans for this estate had been legitimately varied since the approval of the plans. It is not sufficient for the Council to interfere with the plans simply because there appears to be some lands in the estate which are not build on because they are part of the plans. I am satisfied that the plaintiffs have a case with a probability of success. If the defendant is not stopped and documents of tittle are issued, it will create a situation, which would complicate the matter and course irreparable damage to the applicants.
The Defendant and the would be allottees stand to suffer no loss of the injunction is issued.
The application is allowed as prayed for in prayer © and (d) of the Chamber Summons of 9. 11. 99.
Delivered and dated this 12th day of July, 2000.
KASANGA MULWA
JUDGE