[2007] KEHC 615 (KLR)
The court found that only the 2nd plaintiff had provided evidence of proprietary interest in the affected property, while the other plaintiffs had not established locus standi. The court further held that the plaintiffs delayed for three years before seeking relief, during which time the defendants had substantially...
Source-derived case information.
- Citation
- [2007] KEHC 615 (KLR)
- Parties
- Plaintiff: Nelson Muturi Kangatta; Plaintiff: Christine Gesare Miyogo; Plaintiff: Mbugua Kangethe; Plaintiff: Eucabeth Nyamora; Defendant: Gedion Kyalo; Defendant: Ongore A. Areak; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 966 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Temporary Injunction
- Outcome
- application dismissed with costs to the defendants
- Legal Topics
- Temporary Injunctions, Public Land Access, Locus Standi, Delay and Equity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nelson Muturi Kangatta
Plaintiff
Christine Gesare Miyogo
Plaintiff
Mbugua Kangethe
Plaintiff
Eucabeth Nyamora
Plaintiff
Gedion Kyalo
Defendant
Ongore A. Areak
Defendant
City Council of Nairobi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the plaintiffs are entitled to a temporary injunction restraining the defendants from interfering with a public reserved area at Umoja Innercore, Sector 3.
- 2 Whether the plaintiffs have locus standi to bring the application.
- 3 Whether the plaintiffs have satisfied the conditions for granting a temporary injunction.
Ratio Decidendi
The court found that only the 2nd plaintiff had provided evidence of proprietary interest in the affected property, while the other plaintiffs had not established locus standi. The court further held that the plaintiffs delayed for three years before seeking relief, during which time the defendants had substantially completed or constructed the disputed structures. The court emphasized that equitable relief is not available to those who sleep on their rights, and that granting the injunction would cause undue hardship to the defendants who had invested in the developments. The balance of convenience did not favor the plaintiffs, and the conditions for granting a temporary injunction were...
Court Disposition
application dismissed with costs to the defendants
Orders
- The chamber summons dated 14th September, 2006 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE 966 OF 2006
NELSON MUTURI KANGATTA ………….…..………1ST PLAINTIFF
CHRISTINE GESARE MIYOGO ……………...……….2ND PLAINTIFF
MBUGUA KANGETHE …………………...…………….3RD PLAINTIFF
EUCABETH NYAMORA ………………..………………4TH PLAINTIFF
V E R S U S
GEDION KYALO ………………………..………….….1ST DEFENDANT
ONGORE A. AREAK ……………………….………..2ND DEFENDANT
CITY COUNCIL OF NAIROBI …….……....…………3RD DEFENDANT
R U L I N G
This is an application by the Plaintiffs (chamber summons dated 14th September 2006) for a temporary injunction to restrain the Defendants
“from continuing to build or erecting structures or in any other way from interfering with a reserved area for the public at UMOJA INNERCORE, SECTOR 3 to allow residents or neighbours an access or through-way or passage to their residences in Plots Nos. B54. 3, B54. 4, B47. 3 and B54. 2”
pending the final determination of this suit. The application is brought upon the grounds that the structures erected by the Defendants are illegal and ought to be demolished; that the Defendants have illegally acquired a portion of the area reserved for the public, thereby denying the public access through the area; that the Plaintiffs’ efforts to have the Defendants or the relevant Government authorities demolish the structures have been in vain; and that the 3rd Defendant, which is the planning authority, has provided protection and/or encouraged the 1st and 2nd Defendants in the illegal acquisition of a portion of the area reserved for the public.
There are two affidavits sworn in support of the application. The first one is by the 2nd Plaintiff while the second one is by the 1st
Plaintiff. There is also a supplementary affidavit sworn by the Plaintiffs’ advocate, SENETI O. ALBERT, filed on 2nd October 2006.
The Defendants have opposed the application. The 1st Defendant has filed grounds of opposition dated 9th November, 2006 and a replying affidavit sworn by himself on 21st November, 2006 and filed the same day. The 2nd Defendant has filed a replying affidavit sworn by himself and filed on 28th September, 2006. The 3rd Defendant has filed grounds of opposition dated 17th October, 2006. The Defendants basically oppose the application upon the following grounds:-
1. That the application has been brought too late as the structures complained of have already been constructed or substantially constructed, and have been so constructed for over three years before the Plaintiffs came to court.
2. That the Plaintiffs have no locus standi to bring the suit or the application.
3. That the Plaintiffs have not in any event satisfied the conditions for the granting of temporary injunction.
I have duly considered the submissions of the learned counsels appearing. I have also read all the affidavits filed in support of or in opposition to the application. To begin with, only the 2nd Plaintiff has placed before the court evidence of ownership or proprietary interest over one of the properties adjoining the area of public land allegedly illegally acquired, or to use popular parlance, “grabbed”, by the 1st and 2nd Defendants. All the other Plaintiffs have not placed before the court any such evidence of their proprietary interest in any of Plots Nos. B54. 3, B54. 4, B47. 3 and B54. 2. The applications of the 1st, 3rd and 4th Plaintiffs, therefore, cannot be sustained.
Regarding the application by the 2nd Plaintiff, it is apparent from the application itself, the supporting affidavits and the replying affidavits that the structures complained of were either substantially built or already standing when the Plaintiffs came to court. It appears that the dispute between the Plaintiffs and the Defendants had been going on since the year 2003 and that in the meantime the 1st and 2nd Defendants were building in the disputed portions of land. The Plaintiffs did not come to court until September 2006. By the present application they are seeking equitable relief. Equity does not aid the indolent. It is not explained in the supporting affidavit why the Plaintiffs waited for three years before coming to court. To grant the temporary injunction now sought would have the result of putting the 1st and 2nd Defendants to great hardship on account of the fact that they have over the last three years committed resources towards developing the disputed portions of land. As already noted, some of those developments are complete while others are substantial. The balance of convenience, therefore, militates against granting the order sought. The 2nd Plaintiff’s application must also fail.
In the result, the chamber summons dated 14th September, 2006 is hereby dismissed with costs to the Defendants. Order accordingly.
DATED AT NAIROBI THIS 21ST DAY OF JUNE 2007
H. P. G WAWERU
J U D G E
DELIVERED THIS 22ND DAY OF JUNE 2007