[2018] KEELC 3131 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC. CASE NO. 476 OF 2017

MIRACLE LIFE ASSEMBLY

(Raphael Kioko & Catherine Mogaka

Suing as the Trustees).............................................................PLAINTIFF

VERSUS

NAIROBI CITY COUNTY.................................................DEFENDANT

RULING

Through the application dated 18/7/2017, the Plaintiff seeks a temporary injunction to restrain the Defendant or its agents from removing, pulling down or in any other manner interfering with the Plaintiff’s church structures and development erected on L.R. No. 2/112 Argwings Kodhek Kilimani (“Suit Property”) pending hearing and determination of the suit. The Plaintiff also seeks a declaration that it has satisfied the requirements given by the Defendant in respect of the approvals for development; and an order to compel the Defendant to issue a change of user to the Plaintiff pending hearing of this case.

The Plaintiff is a religious institution running a church for purposes of worship in Kilimani area, Nairobi. The Plaintiff moved into the Suit Property in July 2016 after it entered into a lease with Diners Gardens. The Plaintiff embarked on the process of erecting a temporary church structure on the Suit Property and applied for a permit from the Defendant.

It contends that it obtained the National Environment Management Authority’s approval and placed an advertisement in the newspaper inviting public participation on the proposed change of user. Its attempts to follow up the Defendant’s for its response proved futile.

On 30/4/2017 the Defendant’s officials visited the Suit Property and served the Plaintiff with a demolition enforcement notice citing the reasons that no approvals were given by the City Urban Approvals Department. It is on this basis that the Plaintiff seeks the injunction urging that the freedom of worship will be infringed and denied and that its church members will be deprived of their fundamental rights.

A trustee of the Plaintiff, Raphael Kioko swore the affidavit in support of the application. He produced a copy of the letter of offer showing that the Suit Property was leased to the Plaintiff for a term of 3 years 8 months commencing on 20/7/2016. The letter states that the user of the land is a Christian church and that the Plaintiff was responsible for obtaining the necessary permits and licenses for running its business.

The Plaintiff’s letter dated 15/6/2016 addressed to the director UDD sought permission to repair and rehabilitate the plot stating that the Plaintiff intended to carry out works relating to the repair of toilets, repair of floor, site clearance, leveling and replacement of the gate. The Defendant wrote to the Plaintiff on 22/6/2016 granting permission for the repairs. The letter did not grant authority to change the user of the Suit Property.

The Plaintiff also wrote to the Defendant’s Executive Cabinet Member in charge of Land and Urban Planning in September, 2017. It clarified in that letter that the plot which is on Argwings Kodhek Road opposite Kilimani Primary School was not a residential plot but a commercial plot. The letter sought authority to erect a temporary structure on the Suit Property for use as a church. The letter stated that the temporary structure being put up will be sound proof to minimize sound pollution. The letter was written following a meeting held in the Defendant’s offices on 20/9/2016.

The Defendant responded to the letter on 7/10/2016 clarifying that even though the Suit Property previously accommodated a bar and restaurant, the Plaintiff’s proposal was incompatible with the earlier user and it therefore needed to get the user of the Suit Property changed. The letter stated that the area where the Suit Property is situated being a predominantly residential neighborhood, a no objection outcome was essential to secure the change of user after ensuring that there was public participation through advertisement in a widely circulated newspaper and a site board on the Suit Property. In the letter the Defendant regretted that the Plaintiff had gone ahead to put up tents on the plot for use as a church establishment without first obtaining the approval of the County Government.

The Defendant clarified that its letter of 22/6/2016 did not substitute the requirement for approval since that letter clearly authorised the Plaintiff to undertake minor repair works only. The letter asked the Plaintiff to cease the church activities.

The Plaintiff also annexed a copy of the public notice carried in the Saturday Standard of 15/10/2016 as well as the Environment Impact Assessment License issued by National Environment Management Authority on 23/2/2017 together with the Defendant’s Enforcement Notice.

The Defendant filed a notice of preliminary objection on 27/7/2017 claiming that there was another pending, that is, CMCCC No. 4795 of 2017 involving the same parties. The Defendant’s Director of Planning Compliance and Enforcement swore a replying affidavit which was filed in court on 24/8/2017 in opposition to the Plaintiff’s application. The Defendant maintains that there was no public participation or stakeholder consultations. The Defendant received complaints from the residents with respect to traffic management and emission of excessive noise over which it had warned the Plaintiff and served on it two enforcement notices. The Plaintiff had not taken any mitigation measures.

Parties filed submissions and authorities which the court has considered. The issue for determination is whether the Plaintiff has met the principles for the grant of a temporary injunction. The Respondent argues that the 3rd and 4th prayers sought in the application ought not to be granted as they are final in nature. The court agrees with this position.

The Defendant argues that the court has no jurisdiction to deal with this matter since Section 38 (4), (5) (6) of the Physical Planning Act provide for a procedure for challenging an enforcement notice. The Defendant submits that it is trite law that where a statute provides for procedures the court should allow parties to exhaust those procedures before seeking redress in court. The Respondent also argues that it did not grant approvals to the Plaintiff to erect the structures and relies on Section 31 (2) of the Physical Planning to buttress its argument that structures built without approval are illegal.

The court agrees with the Defendant that it is proper for the Plaintiff to first exhaust the mechanisms provided in the Physical Planning Act for challenging an enforcement notice before moving the court for redress. The application dated 18/7/2017 is dismissed with costs to the Defendant.

Dated and delivered at Nairobi this 30th day of May 2018.

K. BOR

JUDGE

In the presence of: -

Mr. Kitonga holding brief for Mr. Swaka for the Plaintiff

Mr. V. Owuor- Court Assistant

No appearance for the Defendant/Respondent