[2018] KEHC 2878 (KLR)
The court found that the applicant failed to demonstrate any urgency or infringement of rights that would justify the grant of a temporary injunction. The material presented did not establish a prima facie case or irreparable harm, and the dispute appeared to be a family rivalry rather than a genuine legal...
Source-derived case information.
- Citation
- [2018] KEHC 2878 (KLR)
- Parties
- Applicant: Neo Kenya Mpya Commutters Limited; Respondent: Joy Kenya Limited; Respondent: Nairobi City County Government
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 197 of 2017
- Procedural Posture
- Civil Case / Ruling on Application for Temporary Injunction
- Outcome
- application dismissed with costs to the defendants
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Interlocutory Injunctions, Allocation of Parking Space, Discretion of Public Authorities, Alternative Dispute Resolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Neo Kenya Mpya Commutters Limited
Applicant
Joy Kenya Limited
Respondent
Nairobi City County Government
Respondent
Procedural Posture
Civil Case / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondents from interfering with the allocated parking space.
- 2 Whether the allocation of parking space by the 2nd respondent was lawful and exclusive to the applicant.
- 3 Whether the dispute should have been subjected to alternative dispute resolution before approaching the court.
Ratio Decidendi
The court found that the applicant failed to demonstrate any urgency or infringement of rights that would justify the grant of a temporary injunction. The material presented did not establish a prima facie case or irreparable harm, and the dispute appeared to be a family rivalry rather than a genuine legal grievance. The court emphasized that the 2nd respondent has the discretion to allocate parking spaces and that the matter was more suitable for alternative dispute resolution. As no interim orders had been granted and no further complaints had been raised for over a year, the court concluded that there was no merit in the application and dismissed it with costs to the respondents.
Court Disposition
application dismissed with costs to the defendants
Orders
- The application for a temporary injunction is dismissed.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 197 OF 2017
NEO KENYA MPYA COMMUTTERS LIMITED..................APPLICANT
VERSUS
JOY KENYA LIMITED..................................................1ST RESPONDENT
NAIROBI CITY COUNTY GOVERNMENT..............2ND RESPODNENT
RULING
This suit was filed on 21st September, 2017 seeking the substantive order of an injunction against the defendants. The dispute involves some parking space in the central business district which was allegedly allocated to the plaintiff by the 2nd defendant. The 1st defendant is said to be a rival bus company which has allegedly been allocated the same parking space by the 2nd defendant.
The defendants denied the plaintiff’s claim in the statements of defence filed herein. Alongside the plaint an application was filed for the same orders for a temporary injunction and the grounds set out on the face of the application. The application is under Sections 3A, 3B and 63e of the Civil Procedure Act and Order 40 rules 1 and 2 of the Civil Procedure Rules. The application is supported by an affidavit sworn by the Managing Director of the plaintiff. The application is opposed and replying affidavit sworn on behalf of the defendants.
From the material presented, the owners of the motor vehicles cited in the application are related. In fact they are said to be brothers. It is not therefore hard to dismiss the allegation that this is family rivalry that has been brought to the court.
The principles upon which an injunction may be granted are clear going by the case of Giella vs. Cassman Brown & Company Limited (1973) 358. The 2nd defendant holds the discretion to allocate parking space to any operator in the City of Nairobi. This is a matter that should have been subjected to alternative dispute resolution instead of involving the courts of law.
It is instructive that no interim orders were granted and it is over a year now, yet the plaintiff has not come to court to complain of any infringement of his right. It is clear in the first place there was no urgency and above all the injunction order sought was not based on any infringement as alleged in the application.
On the material presented, I see no merit whatsoever to grant the orders sought and therefore this application is dismissed with costs to the defendants.
Dated, signed and delivered at Nairobi this 23rd day of October, 2018
A. MBOGHOLI MSAGHA
JUDGE