DAVID NJOROGE WAMBIA v LILIAN N. KIBUGU & NAIROBI WATER SEWARAGE CO. LTD [2008] KEHC 1857 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 10 of 2007

DAVID NJOROGE WAMBIA ………….............…………  PLAINTIFF

VERSUS

LILIAN N. KIBUGU ………………..……………… 1ST DEFENDANT

NAIROBI WATER SEWARAGE CO. LTD. …….. 2ND DEFENDANT

RULING

APPLICATION FOR INJUNCTION

DATED 9 JANUARY 2007

1.   The dispute that has arisen between David Njoroge Wambia the plaintiff/applicant herein and Lillian N. Kibugu the defendant1/respodennt herein concerns a “sewer line.”

2.   The applicant is the alleged owner of Plot B-08 situated in Mathare North Nairobi.  He was allocated this land by the City Council of Nairobi ( then the Nairobi City Commission) sometime in 1993.  It is not disputed that he constructed a three storey building which he uses for education purposes and alleges he has 700 children.  He constructed the sewer line of the said building to the main City Council sewer line which has a way leave.  This way leave, according to the 1st defendant is illegal and passes through her land property Plot 2-299.

3.   The defendant No.1 is alleged to have destroyed the sewerage line causing the plots to experience a land environmental concern.

4.   The plaintiff sued the defendant 1 to restrain her from interfering with the sewer line.  He also sued the 2nd defendant the newly formed water and sewerage company Ltd to restore his sewage.

5.   The 1st defendant in reply stated the plaintiffs land was originally a play ground.  His allocation was illegal and as such never provided for a school sewage.

6.   It was further noted that the sewage was illegally constructed.

7.   The 2nd defendant stated that both parties are in the wrong.  Both have constructed illegal sewage lines respectively.  The case herein concerns the plaintiff and the plans submitted did not have a sewerage line number.  He did not come to court with clean hands and prayed his application be duly dismissed.

II:   Opinion

8.   The court notes the prayers sought by the plaintiffs amounts to a mandatory injunction against the 1st and 2nd defendant.  Mandatory injunction in Kenya are not issued unless in special circumstances.

9.   The question arises as to whether the plaintiff sewerage line was illegally constructed.  The 1st and 2nd defendant state it was illegally so constructed.  This issue requires to go for full trial.  There is though no prima facie case made out with a probability of services.

10.  This court declines to issue orders of mandatory injunction against the 1st and 2nd defendant.  The application is hereby dismissed with costs to the 1 and 2 defendant.

DATED THIS 11TH DAY OF JUNE 2008 AT NAIROBI.

M.A. ANG’AWA

JUDGE

R. K. Macharia instructed by Macharia & Co. Advocates for the plaintiff

J.K. Mwangi instructed by J.K. Mwangi & Co. Advocates for the 1st defendant/Respondent – present

K. Mbugua instructed by K. Mbugua & Co. Advocates for the 2nd defendant/respondent - present