[2023] KEELC 18527 (KLR)

Huma v Plateau Residents Association & another (Environment & Land Case E318 of 2021) [2023] KEELC 18527 (KLR) (6 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18527 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E318 of 2021

OA Angote, J

July 6, 2023

Between

John Irungu Huma

Plaintiff

and

Plateau Residents Association

1st Defendant

Samuel Wainaina

2nd Defendant

Ruling

1. The 1st and 2nd Defendants/Applicants have filed a Notice of Motion application dated 13th February 2023 in which they have sought the following reliefs:a.That an order for temporary injunction be and is hereby issued, prohibiting the Plaintiff/ Respondents, his agents, staff or any other resident of his house or of the Plateau Residents Cluster from illegally commercializing the properties within the cluster.b.That the OCS Kasarani Police Station in collaboration with the Compliance and Services Delivery Coordinator- Roysambu Sub County and the Administration police under the chief Roysambu Sub County to jointly implement and enforce the above orders.c.That the Honourable Court be pleased to make any such further orders and issue any other relief it deems fit, just and equitable to grant in the interest of justice.d.That costs of the application be provided for.

2. The application is based on the grounds on the face of it and the Supporting Affidavit sworn by Samuel Wainaina, the 2nd Defendant who deposed that he is the Vice Chairman of Plateau Residents Association and has been authorized by the members and officials of the 2nd Defendant to file this application and that the Plaintiff applied for a change of user of his land under the Physical and Land Use Planning Act from agricultural to multiple dwelling units (Masionnetes) in March 2021 and not for commercial use, industrialization, storage etc.

3. According to the 2nd Defendant/Applicant, despite members of the 1st Defendant raising numerous complaints concerning the sudden increase of dangerous gasses and chemicals emission coming out of the Plaintiff’s property lending to respiratory difficulties, the Plaintiff has ignored or refused to act on the same and that since the Plaintiff filed this suit, he has been conducting his affairs with a high level of impunity and disregard for other residents.

4. It was deposed that the Plaintiff has caused a sudden increase in the number of heavy commercial vehicles coming into the Estate and destroying the newly constructed cabro road constructed by members; that the Plaintiff has started using the cabro road as a vehicle testing area causing his garage mechanics to speed vehicles in the estate compound in the name of testing them after repairs and that these acts have now brought panic, anxiety and discomfort among residents.

5. The Defendants aver that they continue to be highly prejudiced as their rights continue to be infringed on by the Plaintiff while using this court to justify his illegal acts; that if the court does not intervene, the Defendants will suffer health hazards and destruction of the environment and their property due to the high levels of pollution, destruction of the road and hazardous environment for their families.

6. The Plaintiff/Respondent deponed that he is not a member of the 2nd Defendant’s Association; that he has never produced or emitted any dangerous gasses or chemicals on the suit property as alluded; that the suit properties are licensed as per the requirements of law, including by the County Government of Nairobi and that he has also undertaken self-audits with the National Environment Management Authority (NEMA).

7. It was the Plaintiff/Respondent’s averment that he purchased the suit property in 1984; that he was issued with a title deed for LR no Nairobi/Block/110/223 in 1991 and a title deed for Nairobi/ Block/110/224 in 1998 and has been residing and operating various businesses on the suit properties for over thirty years with no interference whatsoever and that at that time Thome was an agricultural area and therefore no cluster residential associations existed.

8. The Plaintiff deposed that he has freedom of association including the right not to be compelled to join or participate in the activities of the 1st Defendant’s Association; that he has no recent recount of a behaviour change that can be regarded as impunity and disregard to the cluster members as alleged; that the road in question is a public road and it is unfounded to insinuate that all vehicles on the road are coming into the suit premises and that the Defendants have failed to give particulars of the alleged damage on the road, where the damage took place and its correlation him.

9. It was the Plaintiff’s further averment that the road as he knows it has no facility to test vehicles as the distance between the suit premises to the first corner on the road is roughly 200 meters and the subsequent corners are even smaller. The Plaintiff lastly urged that should this court grant the injunctive orders sought, he will suffer great loss in his business, as this is his sole means of livelihood for the last thirty years.

Submissions 10. The parties canvassed their submissions orally. Mr. Etemesi for the Defendants/Applicants submitted that the Plaintiff has illegally commercialized the land as he is causing destruction to the property and to the environment. He urged that it is not disputed that the Plaintiff has several businesses and that the Plaintiff’s use of land is contrary to the user of the land, and as indicated in a public notice, that he changed it to multiple dwelling units.

11. Mr. Etemesi urged that there is huge environmental violation contrary to Article 21 of the Constitution. To support the same, he referred the court to the various complaints and evidence of heavy commercial vehicles going in and out of the compound. Counsel submitted that the court should look at the public interest as the rights of many persons are being violated.

12. He further submitted that the Plaintiff failed to attach the NEMA Self-Assessment Report and that there is no evidence to show that the disputed area is a commercial area.

13. Mr. Ngotho for the Respondent submitted that the Plaintiff/ Respondent has been undertaking the business of food production on small scale since 1984 when he bought the land and that at the time, the residential association did not exist. Mr. Ngotho proferred that all the Plaintiff’s businesses are licensed and he has been issuing self-audits to NEMA and that there is evidence that the area is residential. He urged that the user of land is agricultural. It was Mr. Ngotho’s submission that there is no evidence of environmental degradation or harm to the residential area.

Analysis and Determination 14. This court has considered the Defendants’ application, the response by the Plaintiff and the evidence and submissions by both parties. The issue for determination is whether this court should issue a temporary injunction prohibiting the Plaintiff from conducting commercial activities on his property.

15. It is not disputed that the Plaintiff is the legal owner of LR no Nairobi/ Block/110/223 and Nairobi/ Block/110/224 and has been residing and operating various businesses on the suit properties for over thirty years. This suit was instituted by the Plaintiff who sought to restrain the Defendants from trespassing or interfering with the businesses on his properties.

16. The Defendants have, on their part, filed a counterclaim against the Plaintiff, seeking to restrain the Plaintiff from carrying on any commercial or industrial activities on his properties which are within a controlled development areas and interfering with the quiet and peaceful enjoyment of their properties.

17. Order 40 Rule 1 of the Civil Procedure Rules, 2010 prescribes the law on grant of interlocutory injunctions as follows:“Where in any suit it is proved by affidavit or otherwise-(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution if any decree that may be passed against the defendant in the suit,The court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”

18. The case of Giella v Cassman Brown (1973) EA 358 sets out the essential conditions to be satisfied for a court to issue injunctive orders:“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

19. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal restated the law as follows:“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a)establish his case only at a prima facie level,(b)demonstrate irreparable injury if a temporary injunction is not granted, and(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance co Ltd v Afraha Education Society [2001] vol 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”

20. This court is guided by the above jurisprudence. In this application, the Defendants are required to satisfy three conditions: that they have a prima facie case with a likelihood of success; that if this application is not granted, they are likely to suffer irreparable damage which cannot be compensated by damages and that the balance of convenience tilts in their favour.

21. In Mrao Ltd v First American Bank of Kenya and 2 Others, (2003) KLR 125 which was cited with approval in Moses C. Muhia Njoroge & 2 Others v Jane W Lesaloi and 5 Others, (2014) eKLR, the Court of Appeal defined a prima facie case as: -“A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

22. The Defendants’ case herein is that the Plaintiff has been using his properties for commercial purposes contrary to the user of the land, which is agricultural. They also submit that despite members of the 1st Defendant raising numerous complaints concerning the sudden increase of dangerous gasses and chemical emission coming out of the Plaintiff’s property lending to respiratory difficulties, the Plaintiff has ignored or refused to act on the same.

23. The Defendants have averred that since the Plaintiff filed this suit, he has been conducting his affairs with a high level of impunity and disregard for other residents; that he has caused a sudden increase in the number of heavy commercial vehicles coming into the Estate and destroying the newly constructed cabro road constructed by members; that he has started using such cabro road as a vehicle testing area causing his garage mechanics to speed vehicles in the estate compound in the name of testing them after repairs and that these acts have now brought panic, anxiety and discomfort among residents.

24. The Defendants have annexed several documents to the Supporting Affidavit sworn by the 2nd Defendant to reinforce their claim. These include a photograph of a public notice of the Plaintiff’s intention to change the use of his properties from agricultural to multi-dwelling units; a letter from the 1st Defendant to the Plaintiff dated 18th November 2021; a photograph of a comment updated in the 1st Defendant’s Whatsapp Group and a photograph of a heavy-duty vehicle on a cabro road.

25. Indeed, every person has the right to a clean and healthy environment free and devoid of pollution. This right is secured under Article 42 of the Constitution as well as Article 70, which provides that:“70. (1)If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.”

26. In a claim for pollution, it is critical for a claimant to present scientific empirical evidence to prove such pollution and its causal link to the impugned activities. This position was ably espoused in Kibos Distillers Ltd & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR where the Court stated;“In the instant matter, there is no scientific empirical evidence on record to prove point pollution and its causal link to the activities of the three appellants. No sampling technique to prove river pollution was tendered in evidence. Above all, the alleged deleterious effect of the vinasse to the environment was not scientifically proven and no expert report on the effect of vinasse to the environment was produced in evidence... Pollution is primarily proved by empirical, technical and scientific evidence and not by lay man opinion testimony or depositions.”

27. In this matter, the Defendants have not annexed any expert reports on the claimed emission of dangerous gasses and chemicals from the Plaintiff’s properties to prove pollution nor have they shown a causal link to the respiratory difficulties they claim they are facing.

28. The Defendants have also claimed that the Plaintiff has caused a sudden increase in the number of heavy commercial vehicles coming into the Estate and destroying the newly constructed cabro road constructed by members. To buttress this claim, the Defendants have annexed a photograph of a heavy-duty vehicle on a cabro road as well as complaints by the Defendants sent vide letters and on the 2nd Defendant’s WhatsApp group. The Defendants have however not presented evidence as to the exact position and extent of damage to the cabro road. The Plaintiff’s have thus not made a prima facie case as to the same.

29. Despite the foregoing, it is not disputed that the Plaintiff has indeed been using the suit property contrary to its user for more than 30 years. The Defendants have asserted that this is a controlled residential development, to which the Plaintiff has denied being a member. The parties however concur that the user of the land is agricultural and residential and that the Plaintiff has sought to change such user to multiple residential.

30. Land use planning is defined in the Physical and Land Use Planning Act, 2013 as the process of designating, regulating, evaluating, zoning and organizing the present and future use and development of land in all its geographical areas and its resources to secure the physical, economic and social efficiency, health and well-being of urban and rural communities. Land use planning is therefore critical in order to balance economic, social and health interests of all members of the society.

31. It does not serve as a lawful defense that the Plaintiff has been conducting commercial or industrial activities in a property zoned as agricultural for the last thirty years, particularly because he was legally mandated to seek change of user approval from the relevant local authority as provided under the Physical Planning Act, 1996 (now repealed).

32. On the basis that the Plaintiff has illegally been utilizing his properties for commercial purposes, this court finds that the Defendants have established a prima facie case.

33. The second limb for this court’s consideration is whether the Defendant stands to suffer irreparable loss if this injunction application is not granted. The Defendants have asserted that they stand to suffer health hazards and destruction of the environment and property value, due to the high levels of pollution, destruction of the road and hazardous environment for their families.

34. The definition of ‘irreparable loss’ was considered in Halsbury’s Laws of England [Halsbury’s Laws of England, Third Edition, Volume 21, paragraph 739, page 352. ] where it is stated that :-“It is the very first principle of injunction law that prima facie the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. Where the court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two distinct grounds first, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question”In order to show irreparable harm, the moving party must demonstrate that it is a harm that cannot be quantified in monetary terms or which cannot be cured. But what exactly is “irreparable harm”? Robert Sharpe, in "Injunctions and Specific Performance,"[ Robert Sharpe, Injunctions and Specific Performance, looseleaf, (Aura, On: Cananda Law Book, 1992), P 2-27] states that “irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case.”

35. The Defendants herein have claimed that the irreparable harm they face is harm to their health, environment and property value. Indeed, these injuries cannot be quantified in monetary terms and may cause irreparable damage, especially to the environment and to the health of the members of the 2nd Defendant. The Defendants have therefore established that they stand to suffer irreparable loss.

36. The third limb for this court’s consideration is whether the balance of convenience tilts in favor of the Defendants/ Applicants. The meaning of balance of convenience was considered by the court in Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another [2019] eKLR, as follows:“the meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to them would be greater than that caused to the defendants if an injunction is granted and suit is ultimately dismissed.”

37. The Defendants submitted that their rights continue to be infringed on by the Plaintiff while using this court to justify his illegal acts. They urge that if the court does not intervene, the Defendant will suffer health hazards and destruction of the environment and property value, due to the high levels of pollution, destruction of the road and hazardous environment for their families. On the other hand, the Plaintiff submitted that should this court grant the injunctive orders sought, he will suffer great loss in their business, which has been his source of livelihood for more than 30 years.

38. For the Plaintiff, the inconvenience they would suffer if this court grants the Defendants injunction can be quantified in monetary terms and can therefore be compensated.

39. The balance of convenience thereby tilts in favour of the Defendants/Applicants. I say so because environmental degradation of nay form is irreversible.

40. In conclusion, this court finds that the Defendants’ application is merited and issues the following orders:a.That pending the hearing and determination of this suit, an order for temporary injunction be and is hereby issued, prohibiting the Plaintiff/ Respondents, his agents, staff or any other resident of his house or of the Plateau Residents Cluster from conducting commercial or industrial activities on the Plaintiff’s properties, being LR no Nairobi/Block/110/223 and Nairobi/ Block/110/224. b.That the OCS Kasarani Police Station in collaboration with the Compliance and Services Delivery Coordinator- Roysambu Sub County and the Administration police under the chief Roysambu Sub County to jointly implement and enforce the above orders.c.Costs of this application shall be to the Defendants/ Applicants.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 6TH DAY JULY, 2023O. A. ANGOTEJUDGEIn the presence of;Mr. Etemesi for Applicant/DefendantMs Ngotho for PlaintiffCourt Assistant – Tracy