[2011] KEHC 116 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO. 126 OF 2011

PETERSON KINYARI KARIUKI.............................................................................1ST PLAINTIFF/APPLICANT

JULIA WANGARI MWANGI...................................................................................2ND PLAINTIFF/APPLICANT

VERSUS

MOLO TOWN COUNCIL................................................................................1ST DEFENDANT/RESPONDENT

KENYA RURAL ROADS AUTHORITY...........................................................2ND DEFENDANT/RESPONDENT

RULING

By a Notice of Motion dated 6th June and filed on 7th June 2011, the Applicants sought temporary orders of injunction against the Respondents, pending the hearing of the applicationinter partes.

The Applicants were granted orders of temporary injunction on 7th June 2011, and the Motion was fixed for hearinginter parteson 21st June 2011. In the event it was heard on 17th July, 2011 when counsel for the respective parties argued for and against the motion.

The issue in contention is a plot of land comprising approximately 1/8 of an acre allotted by 1st Respondent to the Applicants by a letter dated 23rd July 2010, and on which the 1st Applicant paid all the necessary fees, amounting to Ksh 25,000/= as specified in the Letter of Allotment. The Applicant exhibited all the receipts for payment of those fees.

The Applicant appears to have moved with speed and sought approval of his development plan from both the Works Officer Molo Town Council, and the Provincial Coordinator/District Physical Planning Officer, Nakuru District, as well as the District Public Health Officer, Molo District.

With those approvals he constructed a stone building comprising -

·Six (6 No.) shops,

·Two (2) corridors,

·Five (5) single rooms with chimneys,

·One (1) Double-room with chimney plinth area of 2,715 sq. ft,

·Four (4) pit latrine compartments,

·Two (2) bulk room compartments - plinth area: 140 sq. ft

The entire building accommodation is valued at Sh 4,800,000/= comprising -

·LandKshs 200,000/=

·Building Ksh 4,250,000/=

·Site WorksKsh 350,000/=

Ksh 4,800,000/=

In a letter dated 24th May 2011,(Ref. NKU RE/KUR/CAMP 001),by the Regional Manager, Manager, Kenya Rural Roads Authority, addressed -

To: The Private Developer,

Camp No. LR. 9756/3

MOLO

The Regional Manager advised the nameless Private Developer, that the Molo Road Camp LR No. 9756/3 is situate on junction D316/D315 Kiambiriria and informing the private developer that the camp plus the permanent houses which were demolished belong to the Ministry of Roads.

In his Replying Affidavit sworn on 1st July 2011, and the Further Replying Affidavit sworn on 14th October 2011 Mr. Justin Malala Rapando maintained that the suit land belonged to the Ministry of Roads, that it was reserved for the Ministry in the 1940s(without showing any authority to support that statement). Mr. Rapando also contends that there is already a contract for the construction of road passing through the camp, and that that work was in progress, and that the contractor would sue the Authority if work were stopped.

This deponent also claimed that the allocation to the Applicants was unlawful(but did not say why it was unlawful).There was no Replying Affidavit from the Molo Town Council, the 1st Defendant. If it was unlawful, that would be a matter for determination at the hearing of the main suit, and not at this interlocutory stage.

The principles for granting temporary injunctions are explained in the case of GIELLA VS. CASSMAN BROWN & CO. LTD [1973] E.A. 358, (1) that the Applicant must establish a prima facie case with a probability of success, (2) that the Applicant will suffer irreparable loss and damage if the injunction is not granted, and (3) that if in doubt the court will decide on the balance of convenience.

On the first principle, I have no doubt in my mind that the applicants have established a prima facie case with a probability of success. They have demonstrated a letter of allotment from the 1st Defendant with conditions attached thereto. They have complied with those conditions. They have not only paid the necessary fees for the plot; but also secured necessary approvals, including Public Health Authority, and Works Officer, and Physical Planning Officer for the development of the suit land. The Applicants have erected a building with 6 shops with 2 corridors, 5 single rooms with chimneys and 1 double room with chimney together with associated sanitary facilities. The building is said to be 50 metres away from the tarmac. The entire development is valued at 4. 8 million.

The Applicants would certainly suffer substantial and quantifiable loss if the injunction were not granted.

There is of course no doubt that the 2nd Defendant would compensate the Appellant if the development were to be destroyed, but would that happen when the 2nd Defendant is accusing the 1st Defendant of allocating the plot illegally? The balance of convenience would lie with the Applicant.

For those reasons, I would allow the Applicants Notice of Motion dated 6th June 2011 with costs in the cause.

Dated, delivered and signed at Nakuru this 4th day of November, 2011

M. J. ANYARA EMUKULE

JUDGE