[2016] KEELC 480 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC CIVIL CASE NO. 28 OF 2015

KIMOLO BONIFACE MUTUKU

STANLEY JULIUS KILONZO……...............…..PLAINTIFFS/APPLICANTS

-VERSUS-

JAMES NJENDU KAMAU………....….......1ST DEFENDANT/RESPONDENT

KENYA POWER & LIGHTING CO. LTD…2ND DEFENDANT/RESPONDENT

RULING

[1] The plaintiffs commenced their suit against the defendants vide a plaint dated 20th February 2015. Alongside the plaint, they filed a notice of motion of even date in which they sought for the following orders ;

(3) That the honourable Court be pleased to make an order of injunction restraining the Defendants/Respondents, their agents, employees any/or servants from re-routing and /or in any way dealing with the three phase high voltage electricity running along the public road between the plaintiff’s properties and the alleged 1st Defendant’s property in any such way as may make it run above the plaintiff’s properties pending the hearing and final determination of this suit.

(4) That the honourable Court do make further orders as it may deem fit and just in the circumstances.

[2] The application is grounded on facts listed on the face of it inter alia that they are the lawful owners of three plots known as plot No 69, 70 and 72 which fall within plot No 624 section 1 Mainland North. That the 1st defendant has dishonestly applied to the 2nd defendant to re-route a 3 phase high voltage power line over the plaintiffs’ properties. Lastly, that should the power line be re-routed to run above or near the plaintiffs’ houses the said houses shall become inhabitable. Therefore they asked the Court to issue preservatory orders to stop any such exercise.

[3] The application is also premised on the affidavits deposed by the plaintiffs. Mr Kimolo Mutuku the 1st applicant deposed that he has been in occupation of the two properties since 2004. That the 1st defendant claims to be the owner of plot Nos 8005 - 8010 section 1 MN neighbouring their plots and separated by a public road. He deposed that for many years the 1st defendant has been pursuing the 2nd defendant to re-route the high voltage power line and for the same to run above his houses.

[4]The 1st plaintiff deposed further that the wall erected by the 1st defendant encroached on the public road and enclosed the power line. That they presented complaints to the Municipal Council of Mombasa who subsequently stopped the construction of the said wall. Later in November 2012 they noticed frequent visits of the 2nd defendant’s employees on the site surveying with a purpose to re-route the line. The 1st plaintiff went further to annex a letter written to Hon Awiti Bolo by the 1st defendant complaining that the power line runs over his property.

[5]The 1st plaintiff deposed that the 1st defendant is colluding with some employees of the 2nd defendant and has been given estimate costs of re-routing the power line to run over the applicants’ properties. They believe there is a real threat that the power line may be relocated anytime. The 2nd plaintiff in his supporting affidavit deposed that the facts brought out in the 1st plaintiff’s affidavit apply to him as well.

[6] On 23. 4.2015, the plaintiffs sought leave to file a supplementary affidavit in response to the Replying affidavit. This Court granted them leave to do so within 14 days of that date. At the time of writing this determination, there was nothing on record. The application is opposed by replying affidavits sworn by each of the defendants.

[7]The 1st defendant Mr James Njendu Kamau admitted being the owner of plot Nos 8005 – 8010 section 1 Mainland North. He also admitted the existence of a public road but denied there has been any encroachment on it by his wall. The 1st defendant deposed that on September 2011 on realising that the power line was erected over his parcels, he sought audience with the 2nd defendant seeking the same to be re-routed along the road reserve or their boundary. No action was taken by the 2nd defendant and he deposed to writing a second letter on 25th February 2011. He deposed further that when he sought re-routing, he never requested nor advised the 2nd Respondent to do so through the applicants or any other person’s parcel.

[8]The 1st defendant deposed that he has instituted a suit against the 2nd defendant and annexed copies of pleadings in MSA CMCC No 1211/2014. It is his case that the 2nd defendant is yet to communicate on re-routing of the power line but indicated that the same would be done through underground cables along the public road. He contends that the instant application is brought in bad faith and should be dismissed.

[9] The 2nd defendant via an affidavit deposed by Mr Richard Ottaro, the Wayleaves Officer deposed that he is aware of the public road separating the plaintiffs’ and 1st defendant’s parcels of land. He deposed that before laying the high voltage line, the 2nd defendant considered and followed all the relevant statutory and administrative provisions before and during the laying of the line.

[10] It is deposed that the 2nd defendant obtained the requisite wayleave agreement from the then registered owner of plot No 624/1/MN as per a copy that was annexed as “RO-1”. The 2nd defendant deposed that they have not served the applicants with any quotation of re-routing plans. Secondly that the 2nd defendant cannot go to a site before any payment is made by its clients. Thirdly that a quotation has a shelf life of 90 days thus as of now there is no quotation letter issued to the 1st defendant.

[11] Mr Ottaro continued to depose that the 2nd defendant has not approved any application to re-route the power line. He also referred to the suit whose pleadings are annexed by the 1st defendant. He deposed that he is advised that the applicants have failed to show a prima facie case and therefore the application should be dismissed.

[12] The defendants filed very detailed submissions which I have read and considered while writing this decision. I need not repeat their contents herein. The applicants did not file any written submissions. The 1st defendant pointed out in his submissions that a party cannot be barred to refrain from doing what he/she has not done. The 2nd defendant took the view that the orders being sought are of a permanent nature at an interlocutory stage and therefore rendered submissions both on the principles of granting mandatory and interlocutory injunctions.

[13] It is settled law that for a party to be granted relief of a temporary injunction, he/she must demonstrate to Court that he/she has a prima facie case with a probability of succeeding or that he/she will suffer such great loss/injury that cannot be compensated by an award of damages or that the balance of convenience requires the orders to be granted. This obligation rested on the applicants. See the case Nguruman Ltd vs Jan Bonde & 2 others (2014) eKLR page 10.

[14] In the pleadings as filed, none of the defendants has questioned the ownership of the plaintiffs’ parcels of land. It is also not in dispute that a public road separates the plaintiffs land and the 1st defendant’s parcels. The applicants admit being served with infrastructures provided by the 2nd defendant. In paragraph 7, the 1st applicant deposed to the 1st defendant putting up a wall which enclosed the power line. He annexed a photograph taken on 3rd February 2015. He went further to aver that this wall encroached a little to the public road thus narrowing the road and they had to move the relevant authorities to stop the construction of the said wall. The pictures however show a complete wall.

[15] In my understanding the gist of the applicants’ case was based on a quotation dated 9th February 2015 addressed to the 1st defendant and annexed as ‘KBM 8’. This letter is referenced as “Electricity Supply to your premises on plot No 8005 – 8010 Bombolulu”. One of the steps the letter sets out to be taken is that a design would be done before a quotation is issued. Paragraph 3 also stated that Way leaves approval will be sought by the 2nd defendant.

[16] There was no other document annexed that such wayleave had been sought from the applicants. If as pleaded by the applicants that there is a road between their land and the 1st defendant’s parcel and that the first defendant’s wall already encloses a power line onto his plot then it is illogical that the supply of the power would be done through the applicants plot. Further there is nothing shown as pointed by the 2nd defendant of any plan to re-route the existing power line on the applicant’s plots.

[17]The Court was also shown an existing suit between the defendants where the 1st defendant is seeking to have the 2nd defendant ordered to remove the high power voltage power line from his land. This suit was filed in 2014 and is yet to be concluded. By virtue of the existence of this suit, the 2nd defendant cannot remove the existing power line until the suit is concluded.

[18] Going through the pleadings, I am unable to see any real threat likely to be undertaken by any of the defendants either severally or jointly that would interfere with the applicants user and occupation of their land more particularly causing the three phase high voltage electricity to run through their parcels of land. I do find that the applicants have not discharged their obligation of proving any of the principles for granting the injunction and prematurely came to Court.

[19] In conclusion, it is my finding that this application lacks merit and is based on unfounded threats. The same is dismissed with costs to the defendants.

Ruling dated and delivered at Mombasa this 6th day of October 2016.

A. OMOLLO

JUDGE