[2011] KEHC 2066 (KLR)
The court found that the plaintiff failed to produce evidence of approval for the structures on the suit property, making them prima facie illegal and subject to demolition by the defendant under its statutory mandate. The plaintiff did not demonstrate that she would suffer irreparable harm that could not be...
Source-derived case information.
- Citation
- [2011] KEHC 2066 (KLR)
- Parties
- Plaintiff: Grace Wairimu Sorora; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 340 of 2010
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Legal Topics
- Injunctive Relief, Planning Permission, Demolition of Structures, Irreparable Harm, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wairimu Sorora
Plaintiff
City Council of Nairobi
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from demolishing structures on L.R. No. 209/9749.
- 2 Whether the plaintiff had obtained the necessary approvals for the structures on the suit property.
- 3 Whether the plaintiff would suffer irreparable harm not compensable by damages if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff failed to produce evidence of approval for the structures on the suit property, making them prima facie illegal and subject to demolition by the defendant under its statutory mandate. The plaintiff did not demonstrate that she would suffer irreparable harm that could not be compensated by damages, nor that the defendant would be unable to pay such damages if awarded. Applying the principles in Giella v Cassman Brown, the court held that the balance of convenience favored the defendant, who was acting within its legal authority. Consequently, the application for a temporary injunction was dismissed with costs to the defendant.
Court Disposition
application dismissed
Orders
- The application for a temporary injunction is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC. 340 OF 2010
GRACE WAIRIMU SORORA.....................................................................................................................PLAINTIFF
Being the administration of the estate ofFrancis Sorora Oloitiptip (Deceased)
V E R S U S
CITY COUNCIL OF NAIROBI.................................................................................................................DEFENDANT
R U L I N G
There is no dispute that the suit property, that is L.R. No. 209/9749, belongs to the deceased Francis Sorora Oloitiptip and that the Plaintiff is holder of a limited grant (“GWS1”) and thereby authorized to bring this suit on behalf of the Estate. On the suit land is operated Zam Zam Bar & Restaurant. On 9th July 2010 the Defendant served the Plaintiff with an Enforcement Notice under section 30 of the Physical Planning Act (Cap.286) asking her to remove illegal structures and to cease to occupy the same. The Notice was for 7 days and she was warned that if she did not comply the Defendant was going to demolish the structures. This is what forced her to file this suit for a permanent injunction. In the interim, she sought a temporary injunction under Order 39 rules 1, 2 and 9 of the Civil Procedure Rules.
In the plaint and in the supporting affidavit, the Plaintiff stated that they have constructed a temporary structure and sewer on the suit property and that this was done with the approval of the Defendant. The replying affidavit indicates that the Defendant did not approve the offending structures. No approval was produced by the Plaintiff. The structures would prima facie be illegal and therefore liable to demolition.
There is no evidence that the Plaintiff would suffer irreparable loss or injury which damages cannot adequately compensate, or which the Defendant would be unable to pay.
The balance of convenience should tilt in favour of the Defendant who is executing its mandate under the Physical Planning Act to demolish a structure in respect of which there is no approval.
On basis of Giella –Vs- Cassman Brown & Co. Ltd [973] EA 358, I dismiss the application with costs.
DATED AND DELIVERED AT NAIROBITHIS 14TH DAY OF MARCH 2011
A.O. MUCHELULE
J U D G E