[2007] KEHC 531 (KLR)
The court found that the central issue between the parties is the disputed overpayment charge of Ksh.25,160/-. Since the plaintiff has deposited the disputed sum in court as previously ordered, and the parties need only clarify how the overcharge arose, it is appropriate to grant an interlocutory injunction to...
Source-derived case information.
- Citation
- [2007] KEHC 531 (KLR)
- Parties
- Plaintiff: Wilfred Nderitu Kanyi Gachoka; Defendant: Nairobi City Water & Sewerage Co.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 959 of 2006
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- Application for injunction granted pending determination of the main suit.
- Legal Topics
- Interlocutory Injunctions, Mandatory Injunctions, Overpayment Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Nderitu Kanyi Gachoka
Plaintiff
Nairobi City Water & Sewerage Co.
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from disconnecting water supply pending determination of the suit.
- 2 Whether a mandatory injunction can be granted in the circumstances of this case.
- 3 Whether the disputed sum of Ksh.25,160/- is due and owing.
Ratio Decidendi
The court found that the central issue between the parties is the disputed overpayment charge of Ksh.25,160/-. Since the plaintiff has deposited the disputed sum in court as previously ordered, and the parties need only clarify how the overcharge arose, it is appropriate to grant an interlocutory injunction to restrain the defendant from disconnecting water supply until the main suit is determined. The court considered the relevant case law on mandatory injunctions and found that the circumstances justified the preservation of the status quo. The costs of the application are to be in the cause.
Court Disposition
Application for injunction granted pending determination of the main suit.
Orders
- An injunction is granted restraining the defendant from disconnecting water supply to the plaintiff pending determination of the main suit.
- The costs of this application will be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 959 of 2006
WILFRED NDERITU KANYI GACHOKA ……………… PLAINTIFF
VERSUS
NAIROBI CITY WATER & SEWERAGE CO. ….....… DEFENDANT
RULING
I: BACKGROUND
1. I have before me an application for an injunction to restrain the defendants the Nairobi City Water and Sewerage Company from disconnecting water. That a supply of water to the defendants be made pending the determination of the suit.
2. Ex parte orders were duly granted by the duty judge Kihara J 12. 9.06 on condition that the applicants deposits the disputed sum in questions owned to the defendant is in court. This was duly done and the applicant now seek in this inter parties hearing for the orders to be confirmed.
3. In reply the defendants/respondent set the plaintiff are guilty of latchets and should not be granted an injunction more so a mandatory injunction. The applicant- plaintiff relied on case law of:-
Showind International Ltd v Guardian Bank Ltd
(2002) EA 284
and the
Kenya Breweries Ltd v Okeyo 2002 I EA 109
that permitted mandatory injunction to be issued.
II: FINDING
4. In this case the real issue between the parties is an over payment charge of Ksh.25,160/-. All the parties require to do is sit down and find out how this “over charge arose”.
5. I hereby grant the application for an injunction until the determination of the main suit namely, the sum of Ksh,25,160/- and how it arose. Is this sum due and owing?
6. The costs of this application will be in the cause.
Dated this 30th day of January 2007 at Nairobi.
M.A. Ang’awa
Judge
30. 1.07
B.N. Ngugi for Benson Ngugi & Co. Advocates for the plaintiff
T.M. Macharia for Mbugwa, Atudo & Macharia Advocates for the defendant