[2014] KEHC 1659 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success by demonstrating ownership and occupation of the suit property and showing that the 2nd to 8th defendants constructed a water kiosk without proper authority and in violation of Council guidelines. The Council itself...
Source-derived case information.
- Citation
- [2014] KEHC 1659 (KLR)
- Parties
- Plaintiff: Ramadhan Makokha Noor; Defendant: The Town Clerk, Municipal Council of Nakuru; Defendant: Juma Kahero; Defendant: Rajabu Murumba; Defendant: Mabrukah Salim; Defendant: Ali Shiban; Defendant: Mohammed Juma King’ori; Defendant: Ali Salim; Defendant: Sherifa Wambui Rashid (sued in their Capacity as officials of DOLPHIN YOUTH GROUP)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 16 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted
- Judges
- L Waithaka
- Legal Topics
- Interlocutory Injunctions, Right to Property, Unauthorised Construction, Road Reserves
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramadhan Makokha Noor
Plaintiff
The Town Clerk, Municipal Council of Nakuru
Defendant
Juma Kahero
Defendant
Rajabu Murumba
Defendant
Mabrukah Salim
Defendant
Ali Shiban
Defendant
Mohammed Juma King’ori
Defendant
Ali Salim
Defendant
Sherifa Wambui Rashid (sued in their Capacity as officials of DOLPHIN YOUTH GROUP)
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success for grant of a temporary injunction.
- 2 Whether damages would be an adequate remedy for the plaintiff.
- 3 Whether the balance of convenience favours granting the injunction.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success by demonstrating ownership and occupation of the suit property and showing that the 2nd to 8th defendants constructed a water kiosk without proper authority and in violation of Council guidelines. The Council itself confirmed that the construction was unauthorised and had taken steps to halt it. The court applied the principles in Giella v Cassman Brown, noting that the plaintiff’s right to property was at risk and that damages would not be an adequate remedy. The balance of convenience favoured the plaintiff, as the unauthorised structure interfered with his access and rights. Accordingly,...
Court Disposition
interlocutory injunction granted
Orders
- Pending hearing and determination of the suit, the 2nd to 8th defendants are restrained by themselves, their servants and/or agents or any person acting on their behalf from putting up a water kiosk on Muranga road on the frontage to Plot No Nakuru Municipality Block 13/294.
- If the water kiosk has already been erected on the unauthorised location, the structure is to be pulled down within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
E.L.C NO 16 OF 2012
RAMADHAN MAKOKHA NOOR…………………PLAINTIFF
VERSUS
THE TOWN CLERK, MUNICIPAL COUNCIL OF NAKURU…………..…..1ST DEFENDANT
JUMA KAHERO……………………………..2ND DEFENDANT
RAJABU MURUMBA……………………….3RD DEFENDANT
MABRUKAH SALIM…………………...…..4TH DEFENDANT
ALI SHIBAN…………………………………..5TH DEFENDANT
MOHAMMED JUMA KING’ORI………....6TH DEFENDANT
ALI SALIM…………………………………….7TH DEFENDANT
SHERIFA WAMBUI RASHID (sued in their Capacity as officials of DOLPHIN YOUTH GROUP)..8TH DEFENDANT
RULING
1. By Notice of Motion dated 12th October, 2012 the plaintiff,Ramadhan Makokha Noor, brought this application against the defendants seeking, among other orders; a temporary injunction to restrain the defendants/respondents by themselves, their servants and/or agents or any person acting on their behalf from putting up a water kiosk on Muranga road on the frontage to Plot No. Nakuru Municipality Block 13/294(''suit property'') pending the hearing and determination of this suit.
2. The applicant relied on the grounds stated in his application as well as his supporting affidavit sworn on 12th October, 2012; that he is the lawful owner and in occupation of the suit property; that the 2nd-8th respondents (the Youth Group), had started construction on Muranga road, denying him access to his property despite his protests to the 1st respondent; that whereas he did not oppose the Youth group’s efforts to earn a decent living, he wished that they would do so without interfering with his constitutional right to property.
3. The application was not opposed. The 1st respondent, Wilson Maroa, in a replying affidavit, sworn on 23rd October, 2012, deponed that the 1st respondent was aware of the 2nd-8th respondents plan of putting up the water kiosk and had in fact given them permission to put up a temporary structure to supply water to the residents of Bondeni area, under the Council’s supervision; that what the Council did not authorise was the erection of a permanent structure as put up by the 2nd-8th respondents; that they did not involve the Council in their plans, a fact that led them to put up the structure on a road reserve not approved by the Council; that as a result of these actions by the youth, the Council had taken administrative action and halted the unauthorised construction after receiving numerous complaints from other stakeholders, including the plaintiff.
4. The 2nd to 8th respondents did not respond to the application despite being granted sufficient time to do so.
5. The plaintiff filed his written submissions on 14th January 2014, dated 8th January 2014. In their written submissions, Counsel for the plaintiff reiterated their position as contained in the application and supporting affidavit. They also relied on the 1st respondent’s replying affidavit that the Youth group did not have authority to construct the water Kiosk on the location that they did.
6. The case of Giella Vs Cassman Brown ( 1973) E.A 358, lays down the principles for granting an interlocutory injunction relief. The court will consider whether:
1. The applicant has shown that he has a prima facie case with a probability of success.
2. Damages will be an adequate remedy and
3. On the balance of convenience, should the court be in doubt it will determine the matter on a balance of convenience.
7. To demonstrate that he has a prima facie case the plaintiff has exhibited various letters, including one by the 1st respondent to the Youth group authorising the project as long as they complied with the Councils regulations and the project did not interfere with other road users. The 2nd to 8th defendants went ahead and set up the water kiosk but they did not follow the guidelines given by the Council and erected the water kiosk in a different place from the authorized location.
From the foregoing, I am satisfied that the plaintiff has established a primafacie case with a probability of success.
8. For the above reasons, I order that pending the hearing and determination of this suit, the 2nd to 8th defendants are restrained by themselves, their servants and/or agents or any person acting on their behalf from putting up a water kiosk on Muranga road on the frontage to Plot No Nakuru Municipality Block 13/294. In the event that the water kiosk has already being erected on the unauthorised location, the structure to be pulled down within 14 days from the date hereof.
9. Costs of this application to be borne by the 2nd to 8th respondents.
Dated, signed and delivered at Nakuru this 3rd day of October 2014.
L N WAITHAKA
JUDGE
PRESENT
Ms Wambugu holding brief for Ms Wanjiru for the plaintiff/applicant
N/A for the defendants
Emmanuel Maelo : Court Assistant
L N WAITHAKA
JUDGE