[2023] KEELC 20047 (KLR)
The court found that the construction complained of (a mast) was almost complete at the time of filing, rendering the request for an injunction to restrain construction moot. Additionally, the existence of multiple related suits, some with prior injunctive orders, raised questions about the status and effect of...
Source-derived case information.
- Citation
- [2023] KEELC 20047 (KLR)
- Parties
- Plaintiff: Gerishon Kamau Kirima; Defendant: American Towers Corporation
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E047 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- LN Mbugua
- Legal Topics
- Injunctive Relief, Trespass, Estate Administration, Multiple Suits, Status of Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerishon Kamau Kirima
Plaintiff
American Towers Corporation
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from interfering with LR 5908/8 pending determination of the suit.
- 2 Whether the existence of multiple related suits and prior injunctive orders affects the grant of the present injunction.
- 3 Whether the construction complained of has rendered the application for injunction moot.
Ratio Decidendi
The court found that the construction complained of (a mast) was almost complete at the time of filing, rendering the request for an injunction to restrain construction moot. Additionally, the existence of multiple related suits, some with prior injunctive orders, raised questions about the status and effect of those orders and whether the present application was necessary or appropriate. The court exercised its discretion to deny the injunction, finding that the circumstances did not warrant the orders sought. The plaintiff was advised to pursue expeditious resolution of the pending suits to conclusively determine her rights and interests in the property.
Court Disposition
application dismissed
Orders
- The application for injunction is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
Kirima v American Towers Corporation (Environment & Land Case E047 of 2023) [2023] KEELC 20047 (KLR) (21 September 2023) (Ruling)
Neutral citation: [2023] KEELC 20047 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E047 of 2023
LN Mbugua, J
September 21, 2023
Between
Gerishon Kamau Kirima
Plaintiff
and
American Towers Corporation
Defendant
Ruling
1. Before me is a Notice of Motion Application dated 10. 2.2023 where the applicant seeks orders of injunction against the defendant restraining the latter from interfering with land parcel LR 5908/8 pending the hearing and determination of the suit and that the OCS Njiru be directed to effect compliance with the court order.
2. The applicant contends that the suit land remains part of the estate of the late Gerishon Kirima of which the applicant is an administrator of the said estate.
3. She contends that the defendant has trespassed on the suit property., put up a fence and has proceeded to put up a construction site thereon.
4. She further states that the property is a subject matter in the following suits; HCSC Cause No 1298 of 2011; ELC 585 of 2013; HC Civil Case No 662 of 2006 and ELC No 1257 of 2014 where they had obtained injunctive orders against the trespassers.
5. On 22. 6.2023, this court gave directions for the Respondents to file /serve their responses by 29. 6.2023 but there was no compliance with the said order, thus the application is undefended. Nevertheless, this court has a duty to interrogate the merits of the said application. See – Gideon Sitelu Kanchellah v. Julus Lekakeny Ole Sunkuli & 2 others [2018] eKLR (SCOK).
6. I have taken into consideration that as at the time the suit was filed, the alleged construction which was a huge mast was almost finalised. The plaintiff has availed photos of the mast which indeed depicts a more or less complete construction. The issue of restraining the defendant from constructing has therefore been overtaken.
7. Secondly, I find that there are many other suits as set out in paragraph 4 of the Supporting Affidavit of the Applicant in which the claimants are asserting their rights to the suit property LR 5908/8. Some of these cases are very old; for instance the case No 662/2006 is about 17 years old. In that case the claimant (Gerishon Kirima) obtained orders of 19. 7.2006 in which a mandatory injunction to vacate parcel 5908/8 was issued. This court would be interested in knowing the status of these other suits, whether the various orders of injunction were effected and whether the suits were finalized.
8. In the case of Paul Gitonga Wanjau v. Gathuthi Tea Factory Company Ltd & 2 others [2016] eKLR, the court stated that:“an injunction is an equitable remedy meaning the court hearing the application has discretion in making a decision on whether or not to grant the application. The court will consider if it is fair and equitable to grant the injunction taking all the relevant facts into consideration.”
9. I find that the circumstances of this case do not warrant the issuance of the orders sought. The application is dismissed with no orders as to costs.
10. The plaintiff should focus on the expeditious disposal of the various suits so that her rights and interests in the suit properties are once and for all determined.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Onduso for Plaintiff ApplicantM/s Wangilo holding brief for Mr. Kuyo for Respondent