[2010] KEHC 20 (KLR)
The court found that the applicant had established a prima facie case as the registered proprietor of the suit property and had demonstrated ongoing unauthorized construction on the land. The court held that unless an interlocutory injunction was granted, the applicant would suffer irreparable loss due to...
Source-derived case information.
- Citation
- [2010] KEHC 20 (KLR)
- Parties
- Plaintiff: Soroya Investments Ltd; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 378 of 2010
- Procedural Posture
- Civil Suit / Interlocutory Application (ruling on Injunction)
- Outcome
- Application partially allowed; interlocutory injunction granted; mandatory injunction for demolition refused; costs in the cause.
- Judges
- GG Okwengu
- Legal Topics
- Injunctive Relief, Trespass to Land, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Soroya Investments Ltd
Plaintiff
City Council of Nairobi
Defendant
Procedural Posture
Civil Suit / Interlocutory Application (ruling on Injunction)
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondent from dealing with L.R No.209/12317 pending determination of the suit.
- 2 Whether the applicant is entitled to a mandatory injunction compelling demolition of structures erected by the respondent on the suit property.
- 3 Whether the applicant has established a prima facie case with a likelihood of success and risk of irreparable harm.
Ratio Decidendi
The court found that the applicant had established a prima facie case as the registered proprietor of the suit property and had demonstrated ongoing unauthorized construction on the land. The court held that unless an interlocutory injunction was granted, the applicant would suffer irreparable loss due to interference with the property. However, the court declined to grant a mandatory injunction for demolition at this stage, noting the presence of a third party whose involvement was unclear and that such an order would be inappropriate at the interlocutory stage. The court allowed the application only to the extent of granting an interlocutory injunction restraining the respondent from...
Court Disposition
Application partially allowed; interlocutory injunction granted; mandatory injunction for demolition refused; costs in the cause.
Orders
- An interlocutory injunction is issued restraining the respondent, its agents, representatives, employees or any other persons claiming under it from entering upon, trespassing, alienating, encumbering, developing, or in any other manner dealing with L.R No.209/12317 pending hearing and determination of the suit.
- Prayer for mandatory injunction for demolition of structures is declined at this stage.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.378 OF 2010
SOROYA INVESTMENTS LTD.................................................................................PLAINTIFF/APPLICANT
VERSUS
CITY COUNCIL OF NAIROBI.......................................................................................................DEFENDANT
R U L I N G
1. By a chamber summons dated 3rd August, 2010, the plaintiff/applicant sought several orders. Prayers No.(i) and (ii) are now spent. This ruling is for determination of the following prayers:
·That this honourable court be pleased to grant an interim injunction restraining the respondent either by itself, its agents, representatives, employees or any other trespasser or persons claiming under him or under similar claim, from entering upon, trespassing, alienating, encumbering, developing, and/or in any other manner dealing within or in all those property known as L.R No.209/12317 pending the hearing and determination of this suit.
·That this honourable court be pleased to grant an order compelling the demolition of all structures erected by the respondent either by itself, its agents and/or servants on the property known as L.R No.209/12317.
·That the costs and incidentals to this application be provided for.
2. The application is anchored on the following grounds: The applicant is the registered proprietor of the parcel of land known as L.R No.209/12317 (hereinafter referred to as the suit property). The respondent has trespassed upon the suit property and commenced construction of structures thereon. The actions by the respondent are illegal and improper. Therefore, the applicant has a prima facie case with high chances of success and should be allowed to ventilate the same. The applicant stands to suffer irreparable loss and damage, if the orders sought herein are not granted as it cannot be adequately compensated for its loss in damages.
3. The application is supported by an affidavit sworn by the applicant’s Managing Director, Mohamed Yunis Soroya on 3rd August, 2010. In his affidavit, Soroya reiterates that the applicant purchased the suit property. The respondent has now encroached on the suit property and commenced construction. The applicant admits that the respondent filed a suit against it for arrears of rates but maintains that the suit was substantially compromised by payment of Kshs.2 million.
4. The defendant objects to the application through grounds of opposition in which it is contended that the application and entire suit is frivolous, vexatious, bad in law and an abuse of the process of the court. A replying affidavit has also been sworn by Rose Mwema, the Deputy Director, City Planning. She depones that the suit is defective as there has been non joinder of material facts. It is contended that the applicant has failed to prove that the respondent is personally involved in the construction complained of. It is also maintained that the applicant has concealed material facts to the court.
5. I have carefully considered the application before me. The applicant has produced prima facie evidence showing that it is the registered owner of the suit premises. The applicant has also demonstrated that there is construction going on, on the suit property, which construction has not been sanctioned by the applicant, who is the registered proprietor. The applicant has further demonstrated that the defendant has authorized a third party to carry out construction on the suit property. In the circumstances, I am satisfied that the applicant has established a prima facie case. It is evident that unless the orders of interlocutory injunction are granted, the applicant will suffer irreparable loss as the suit property will be interfered with.
6. As regards the prayer for mandatory order of injunction for demolition of the structures, it would not be appropriate at this interlocutory stage to issue such an order particularly since there appears to be a third party whose role in this suit is still unclear. The applicant has complained that part of the construction was undertaken after the order of interim injunction which was issued by the court. That may well be so, the applicant is however at liberty to initiate contempt proceedings if the court orders have been deliberately contravened. For the above reasons, I grant the application dated 3rd August, 2010, only to the extent of issuing an order of interlocutory injunction prayed in prayer (iii) of the application. I further order that costs shall be in the cause.
Dated and delivered this 8th day of December, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Kayaiyi H/B for the plaintiff
Mboya for the Defendant
B. Kosei - Court clerk