[2007] KECA 79 (KLR)

REPUBLIC OF KENYA

COURT OF APPEAL AT NAIROBI

Civil Appli. Nai 110 of 2007 (UR 72/2007)

KENYA PORTS AUTHORITY ……………………………………… APPLICANT

AND

THE CITY COUNCIL OF NAIROBI ….…..…………..………….. RESPONDENT

(Application for injunction pending the lodging, hearing and determination of an intended appeal from a ruling and order of the High Court of Kenya at Nairobi (Ang’awa, J) dated 22nd March 2007

in

H.C.C.C No. 1273 of 2006)

**********************

RULING OF THE COURT

The record before us shows, and it is not in dispute, that the applicant in this notice of motion dated 16th May 2007, Kenya Ports Authority, is the registered proprietor of two pieces of land namely L.R. Number 209/10477 and L.R. Number 209/10216 both in the City of Nairobi which are adjacent to each other. The properties are developed and are occupied by its staff. There is a boundary wall erected around the two properties. When the properties were allocated to the applicant, there were no road reserves or roads of access indicated or provided for in the title documents in respect of both pieces of land nor in the deed plans for the properties. Apparently, after the two properties were allocated and developed, some properties nearby were developed and the Commissioner of Lands appears to have made a decision that a 10 metre road of access be developed at the site. He wrote to the Chief Engineer Roads, Ministry of Roads and Public Works, a letter dated 22nd March 2000 requesting the Chief Engineer to move on the site and construct a road thereon immediately after survey is done. Although the Commissioner said in that letter that he made that decision after consultations with the other stake holders, he did not specifically mention the applicant and that letter was not copied to the applicant. Later, in the year 2003, the Commissioner wrote to the applicant on the issue and this time a copy of the letter was forwarded to the City Engineer of the respondent, City Council of Nairobi. On 24th July 2006, the respondent served the applicant with Enforcement Notice under section 30(1) of Physical Planning Act, Chapter 286 Laws of Kenya and the City Council of Nairobi By Laws. The notice issued stated in pertinent part as follows:

“3. You are hereby required to open the access to the public within a period of 24 hours from the date of this notice failing which the City Council of Nairobi may enter on the said land and execute the requirements as outlined hereinabove and may recover as a civil debt in any court of competent jurisdiction any related expense.

4. This Notice shall take effect on the 24th day of 07 2006. ”

That enforcement notice, notwithstanding that it was dated 24th July 2006 and was for only 24 hours and was to take effect on the same day 24th July 2006, nonetheless advised the applicant at paragraph 5 as follows:

“5. If you are aggrieved by this notice you may appeal to Liaison Committee or High Court as the case may be under provisions of Part II of the Act before the aforesaid …… day of ………… 20…. in which case the operation of this notice shall be suspended pending the final determination or withdrawal of the appeal.”

The applicant felt aggrieved by the notice and appealed to the Nairobi Province/City Physical Planning Liaison Committee vide their Form P.P.A 8 dated 20th September 2006 and addressed to the Secretary to that Committee. That appeal was served upon the respondent on 21st September 2006 before the respondent took any action pursuant to the enforcement notice.

On or about the morning of 30th November, 2006, whilst the appeal was still pending before the Liaison Committee, the respondent’s employees entered the applicant’s subject properties and began demolishing the boundary wall. The applicant then moved to the superior court vide Civil Case No. 1273 of 2006 dated 1st December 2006 seeking in the plaint an order that the respondent be restrained from demolishing the applicant’s boundary wall until the hearing and determination of the applicant’s appeal before the Liaison Committee; an injunction to restrain the respondent by itself, agents, servants, officers and/or any other person acting on its behalf or otherwise howsoever from demolishing the applicant’s boundary wall until the hearing and determination of the appeal to the Liaison Committee; and a declaration that the respondent’s action of demolishing the applicant’s perimeter wall is illegal and premature. Together with that plaint, the applicant also filed a chamber summons dated 1st December 2006 and filed in Court on the same date. It was brought under certificate of urgency and it sought orders to restrain the respondent from entering upon the suit properties and demolishing, destroying or otherwise interfering with the boundary wall or fence surrounding the applicant’s properties pending the hearing and determination of the applicant’s appeal by the Nairobi City Planning Liaison Committee. That application came up for hearing inter-partes before the superior court (Ang’awa J.) who, after full hearing, dismissed it stating as follows:

“10. It is recognized that the Statute in this matter touching on the local authority is silent. I find that the said local authority is part of the central government and or having authority deriving from the central government.

11. That an injunction cannot therefore issue against the (City Council of Nairobi or the Municipality of Limuru) the local authority herein.

12. To this end, I hereby decline to make any order an injunctive (sic) nature against the said local authority.”

That is the order that prompted the applicant, who intends to appeal against it, to come to this Court by way of a notice of motion dated 16th May 2007 under rule 5(2) (b)and42 of the Court of Appeal Rules (the “Rules”). It has filed a notice of appeal. It is seeking an injunction against the respondent pending the hearing and determination of its intended appeal. That application is based on several grounds which we have considered. The respondent opposed the application and filed a replying affidavit sworn by the Director of City Planning of the respondent council, one Peter Mburu Kibinda. In that affidavit, the respondent states that the alleged offensive 12 metre road of access intended to run across the applicant’s property was excised by the Ministry of Lands and Settlement and the applicant was made aware of the need for the road well in advance and had been requested to surrender the titles to the subject properties for purposes of amendments due to the excision but the applicant failed to comply and instead built a fence wall closing the road reserve which was to be the access to several other estates off Mombasa Road. That closure of the access road was illegal and the respondent had to take action to rectify the matter.

As we have stated herein above, the application is brought pursuant to rule 5(2) (b) of the Rules. The jurisdiction exercisable by this Court under rule 5(2) (b) is now well settled. It is original and discretionary. For the applicant to succeed, he must satisfy the twin guiding principles that the intended appeal is arguable, that is that it is not frivolous and that unless a stay or injunction is granted, the appeal or the intended appeal, if successful, would be rendered nugatory – see Githunguri vs. Jimba Credit Corporation Ltd. (No. 2) (1988) KLR 838; J.K. Industries Ltd. vs. Kenya Commercial Bank Ltd. [1982 – 88] 1 KAR 1088 and Reliance Bank Limited (In Liquidation) vs. Norlake Investments Limited – Civil Application No. 98 of 2002 (unreported).

We have considered this application with the above principles in mind. We have considered the submissions by both learned counsel as well as the affidavits before us. In our view, the issue as to whether the respondent is part of the Central Government and is in law covered by the provisions of section 16 of the Government Proceedings Act, Chapter 40Laws of Kenya, as was held by the superior court, is an arguable point. Secondly, whether the respondent, having issued the applicant with an enforcement notice stating that the applicant could appeal to the Liaison Committee if aggrieved, in which event no action would be taken before the outcome of the appeal, and yet proceeding to take action after the appeal was lodged but before the outcome, is another arguable point.

The applicant needs no more than one arguable point to satisfy the first requirement under rule 5(2) (b) of the Rules. The next hurdle it needed to clear is whether the intended appeal would be rendered nugatory were it to succeed if this application is refused. The respondent had started enforcing its notice by demolishing the fence wall constructed on the suit properties by the applicant. The respondent does not deny that allegation. The applicant says the respondent is not only demolishing the wall but is also intent on constructing a 12 metre road on the suit properties and that might affect the staff houses already existing on the properties including the foundations of some of the houses. The respondent says the loss, if any, may be compensated by the respondent in payment of damages. We have considered the circumstances of this case, the contents of the enforcement notice and the action allegedly being threatened by the respondent, plus the unrebutted statement that the Liaison Committee is yet to deliberate on the matter. All considered, what commends itself to us is to preserve the status quo immediately before the enforcement notice was issued.

In the result, the status quo obtaining on 24th July 2006 shall be maintained till the hearing and determination of the intended appeal. The respondent will pay to the applicant the costs of the application.

Dated and delivered at Nairobi this 6th day of July, 2007.

S.E.O BOSIRE

…………………………..

JUDGE OF APPEAL

P.N. WAKI

………………………….

JUDGE OF APPEAL

J.W. ONYANGO OTIENO

………………………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR