[2015] KEHC 2526 (KLR)

REPUBLIC OF KENYA

IN HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NUMBER 215 OF 2015

PENINAH MBITHE MBITHI. …………........……… APPLICANT/PLAINTIFF

VERSUS

KENYA POWER AND LIGHTING CO. LTD. …RESPONDENT/DEFENDANT

R U L I N G

The Plaintiff filed this suit seeking certain reliefs, the main one being a perpetual order of injunction restraining the defendant and its agents from installing and/or continuing to provide electricity within or from the suit premises known as L.R. Mavoko Town Block 3/6091, and a mandatory injunction directing the Defendant to remove its electricity posts, wires and other installations and equipment from the suit premises forthwith.

Together with the plaint, the Plaintiff also filed an application seeking a mandatory injunction directing the defendant to immediately remove its electricity posts, wires and other installations and equipment from the suit premises aforestated. She also sought costs.

The facts behind the application are summarised as follows: -

The land L.R. Mavoko Town/Block 3/6091, belongs and is registered under the Registered Land Act Cap 300, in the name of the Plaintiff/Applicant. A copy of the title was exhibited as PMM3. The Defendant/Respondent, without the Applicant’s consent, entered part of it and started installing thereon, electricity supplying poles, wires and other equipments, including a transformer, with the purpose of supplying customers surrounding the area, with electricity.

The Applicant as a result, visited the Depot and Offices of the Respondent where he reported to an officer called Mureithi, informing him that she had not been requested to give consent nor had she given such consent to the Defendant to install their equipment on her land. She requested the Respondent to stop and withdraw their equipment. The Defendant Company however, ignored her requests completely. Sometimes the Defendant’s Officer told the applicant that they were consulting, but finally continued to install the equipment until completion.

Thereafter, the applicant saw her advocates who wrote two demand notices seeking that the Defendants should remove their installation, but even those letters were totally ignored. The Defendant did not and has never to date, replied to the letters.

In her submissions for a mandatory injunction, the Applicant stated that in entering her land deliberately and without seeking and obtaining consent of the Applicant, the Respondent not only had committed an unlawful act of a tort, but also had deliberately and unfairly stolen a match as against the Applicant. That the Respondent demonstrated an immeasurable arrogance in its conduct all along even until the present. It entered the Applicant’s land forceably, installed equipment forceably and without permission of the owner; it refused to reply to letters seeking an amicable solution; and finally it refused to remove its equipment from the land, all without reasonable cause or excuse.

The Applicant also submitted that these facts demonstrate a prima facie case. More so because the statute under which the Respondent operates, the Electric Power Supply Act, Cap 315, requires the Respondent to seek consent of the land owner before entry and utilization, which the Respondent never sought and when notified or reminded, ignored.

During the hearing, the Respondent conceded to all the facts above. In defence it submitted that the applicant should have filed this application under another suit – The Machakos E.L.C No. 28 of 2014in which the Plaintiff and another are Defendants and one Winnie Nyambura and several others are Plaintiffs but in which the Defendant/Respondent herein, is not a party. It argued that an injunction order issued in Machakos suit, tends to make this suit and application, res sub judice.

I have carefully considered the facts of this case. I have also considered the submissions from both sides. The Respondent/Defendant concedes that the suit land belongs and is registered in the sole name of the Applicant/Plaintiff. It also conceded its entry into the said land without the consent of the Applicant. It further concedes that Applicant visited the Respondent to seek a solution but was ignored as much as the Respondent also failed to respond to the letters from the Applicants advocate demanding removal of the Respondent’s machinery and equipment from the Applicants land. In these circumstances the Respondent did not deny that its entry into the Applicant’s land, the suit premises, was unlawful and wrongful. It also did not deny that its forceable entry and refusal to move its equipment out, was a stealing of a match against the Applicant.

In the view of the court, the Applicant in the above conceded facts, demonstrated a prima facie case with high chances of success.

In Locabail International Finance Ltd Vs Agro. Export and Another [1986] ALL E.R. 901, the court set out the principles Applicable in cases of mandatory injunctions as follows: -

“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the court thought that the matter ought to be decided at once or where the injunction was directed at simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the Plaintiff. Moreover, before granting a mandatory injunction, the court had to feel a high sense of assurance that at the trial, it would appear that the injunction had rightly been granted, that being a different and higher standard that was required for a prohibitory order.”

In this case as earlier stated and majorly conceded by the Defendant, the Defendant had no consent to enter the Plaintiff’s land. It wrongfully and unlawfully forcefully entered the Plaintiff’s land. On being approached to rectify the situation, the Defendant not only ignored responding to the situation but continued to conduct itself unlawfully by going on with construction and installations until completion. It, thereafter, received notices to rectify from the Plaintiff’s Advocate’s but never responded until this suit was filed; indeed until the present. In case the Defendant so much wanted to continue using the particular piece of land, it deliberately failed to make a suitable offer of amends to date. It is not denied that the conduct amounted to stealing a match of the worst kind.

In the view of this court, therefore, this is a clear case where court’s intervention is without delay required to return the situation to normal – i.e. status quo ante. Moreso, because the Defendant raises no plausible or even reasonably probable excuse for conducting itself in the manner it did. It was necessary for the Defendant to show a reasonable explanation for interfering and infringing Plaintiff’s rights over her land. The court does not doubt the financial capacity of the Defendant to pay compensatory damages at the end of the suit but in my view and finding, no amount of money can compensate the infringement of the Plaintiff’s right over her land, breached in the unlawful manner used by the Defendant in this case. I also find that this is a suit case where an immediate relief is required to put matters right, moreso because no one knows how long the main suit may take in court before it is resolved.

The end result is, therefore, that this application is hereby granted in terms of prayer four (4) where a mandatory injunction shall issue forthwith. Costs of the application are to the Applicant/Plaintiff.

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D A ONYANCHA

JUDGE

Dated and delivered at Nairobi this 29th day of September, 2015.

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JUDGE