[2018] KEELC 2405 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC CIVIL SUIT NO. 538 OF 2011

KENYA POWER & LIGHTING COMPANY LTD.....PLAINTIFF

VERSUS

OMAR ABUBKAR ALI

JUMA MGANGA

JAMES MUTHINJA

BEN KARUGU............................................................DEFENDANTS

JUDGEMENT

1. The plaintiff brought this claim against the four defendants vide the plaint dated 6. 10. 2011 seeking the following reliefs:

(a) A mandatory injunction compelling the Defendants by themselves, their servants, agents and/or employees to demolish all the illegally erected permanent and/or temporary structures directly under the high and low voltage power supply lines on the road reserve along Shelly Beach Road and on the access road abutting plot numbers NMS/BLOCK I/240 and NMS/BLOCK I/241.

(b) A permanent injunction restraining the Defendants by themselves, their servants, agents and/or employees from further erection and/or construction of any illegal permanent and/or temporary structures under the high and low voltage power supply lines on the road reserve along Shelly Beach Road and on the access road abutting plot numbers MMS/BLOCK I/240 and MMS BLOCK I/241.

(c) Costs of this suit

(d) Interest on (c) above at court rates.

(e) Any further or other relief that this Honourable Court may deem just and expedient to grant.

2. Except for the 1st defendant, the other 3 defendants did not defend the suit. On the 13th December 2011, the plaintiff requested for interlocutory judgement to be entered against the 3rd & 4th defendants for failing to enter appearance. The 1st defendant filed a memo of appearance and a statement of defence on 16th November 2011 in which he denied the plaintiff’s claim and put the plaintiff to strict proof.

3. The matter proceeded to hearing from 6th December 2016. The plaintiff called a total of 3 witnesses. The witnesses stated the plaintiff’s case that the defendants have erected structures some permanent & others temporary hindering their route to the submarine cables. That these structures were at one point demolished by the county government of Mombasa before they were put up again in December 2010.

4. PW 1 in his evidence stated that upon carrying out investigations, found the access road was between plot Nos. 240 and 241 and that the impugned structure belonged to the 1st defendant. He reported the matter to the District Officer and the defendants were communicated to vide the letter dated 28. 12. 2010 (Pex 1) asking them to demolish the structures. The witness went further to produce the Registry Index Map as Pex 3 to demonstrate the existence of the access road even on the map. PW 1 continued that when he visited the premises a day before testifying in Court, there were more structures put up than the ones that were there before.

5. PW 2 Mr Thomas Mwakulila who is a businessman and lives in Likoni said as at 2010, he was an employee of the plaintiff as the manager YWCA – Likoni located along Shelly beach. PW 2 said that in 2010 illegal structures were built on the access road. That the 1st defendant’s structure was built near the gate of YWCA – Likoni. He reported the matter to the D. O & D. C who wrote the letter already produced as Pex1. That the plaintiff uses the access road to maintain their submarine lines. He urged the Court to give an order for demolition of these structures.

6. P. C Geoffrey Ouma testified as PW 3. He is a scenes of crime personnel previously stationed in Mombasa. On 6th April 2017, he visited the suit premises and took a total of twelve (12) photographs on request of the plaintiff. The witness stated that he was shown the power line running from Likoni Ferry to Shelly Beach. That he was to capture shops which were under a power line blocking the plaintiff’s service line. He said that the photographs showed the general view of the road and the shops. The photos were produced as Pex 6.

7. In cross – examination, the witness said he found the wayleave blocked by several shops. That there are no shops on the right from the Ferry to Shelly beach. PW 3 also said he did not participate in any investigations. This marked the close of the plaintiff’s case.

8. The 1st defendant’s counsel then sought an adjournment to present his case. The Defence hearing was rescheduled for 8th March 2018. However on that date, they did not appear. The 1st defendant’s case was closed without any evidence and matter listed for submissions. Again in spite of service, they never filed any written submissions or attend Court on 22. 5.2018. The effect of this is that the facts presented by the plaintiff have not been controverted.

9. The plaintiff filed their written submissions on 5th April 2018. In it, they submitted that the 1st defendant did not produce any evidence to support his paragraph 4 of the defence where he pleaded that he carried out the developments after obtaining all the necessary consents from the relevant authorities. The plaintiff submitted that they have proved through oral & documentary evidence that the defendants have constructed temporary and permanent structures on the road reserve abutting plot number MMS/BLOCK I/240 and on the access road between plots No 240 & 241. The plaintiff thus urged the Court to grant the reliefs contained in the plaint.

10. The 2nd – 4th defendants did not file any pleadings to contest the plaintiff’s claim. The evidence of PW 1 & PW 2 was not challenged by the 1st defendant who filed a defence. Further in cross – examining PW 3, the 1st defendant did not contest the evidence contained in the photographs and that the structures in those pictures were under a power line. Before filing this suit, the plaintiff caused the developers to be notified that the structures under the power lines were illegal. This was done in the letter dated 16th November 2010 addressed to the Mayor of the then Municipal Council of Mombasa which letter was copied to the D. C, Likoni, OCS Mombasa & NEMA. The map shows the access road that has been blocked indeed is lawful.

11. Under the law of evidence, any fact put forth and not denied is presumed to present the true state of affairs. This is provided under sections 107 – 109 of the Evidence Act. Section 107 provides “whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

In the instant case, the plaintiff has proved that there is a right of way which it is entitled to enjoy its use through production of the RIM and that the said access has been denied by structures put up without permission of the relevant agencies.

12. In the conclusion, I am satisfied that the plaintiff has proved its case on the scales required under the law. PW 1 added that besides not being able to access the area to maintain their lines, living under the line is also endangering someone’s life which ought to be protected. Accordingly, I enter judgment for the plaintiff as against the defendants jointly and severally as prayed in the plaint.

Dated, signed & delivered at Mombasa this 18th July 2018

A. OMOLLO

JUDGE