Godfrey Bwire Barasa, Doreen Nkatha Muthaura, Olivia Achieng Okello & Chizzy Tabu Orwa (suing on their own behalf and on behalf of Vigilance Homes Residents Association) v Jackson Ngelai Olechuta & County Government of Kajiado [2019] KEELC 3268 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAJIADO

ELC CASE NO. 135 OF 2018

GODFREY BWIRE BARASA

DOREEN NKATHA MUTHAURA

OLIVIA ACHIENG OKELLO

CHIZZY TABU ORWA (Suing on their own behalf and on behalf of

VIGILANCE HOMES RESIDENTS ASSOCIATION)…………………………….PLAINTIFFS

VERSUS

JACKSON NGELAI OLECHUTA……………………………………….……1ST DEFENDANT

COUNTY GOVERNMENT OF KAJIADO……………………….....……….2ND DEFENDANT

RULING

What is before Court for determination is the Plaintiffs’ Notice of Motion application dated the 9th August, 2018 brought pursuant to Order 40 Rules 1(a) and 2 (1) of the Civil Procedure Rules and Section 3A as well as 63 ( e) of the Civil Procedure Act. The Plaintiffs seek a temporary injunction to restrain the 1st Defendant from constructing a multi dwelling flat or any other flats on Kaputiei North/ Isinya Block 2/ 473 and 474 hereinafter referred to as the ‘suit lands’,  pending the outcome of the suit. Further, that the Court to issue an order directing the 2nd Defendant to enforce its Planning Policies and established Development Control Zones to ensure the Construction works carried on the suit lands are undertaken in accordance with the Special conditions issued on the Certificates of Lease.

The application is premised on the summarized grounds that the Plaintiffs’ are members of Vigilance Homes Residents Association and registered proprietors of land parcels numbers Kaputiei North/ Isinya Block 2/ 173 and Kaputiei North/ Isinya Block, 2 / 153 which are adjacent to the suit lands. The Plaintiffs have been in occupation of their developed private dwelling residential houses. Further, that the leasehold titles from the aforementioned parcels of land including the suit lands, arose from the subdivision of Kajiado/ Kaputiei North/ 4105 for which approval for the subdivision scheme was granted upon formal written acceptance of the special conditions that entailed inter alia; that the land shall only be used for one private dwelling house and building thereon shall not cover more than 50% of the area. The 1st Defendant without obtaining any approval, license and change of user disregarded the development zoning regulations established by the 2nd Defendant as per the Special Conditions and has commenced construction of a multi dwelling five (5) storey residential flat thereon.

The application is supported by the affidavit of GODFREY BWIRE BARASA and DOREEN NKATHA MUTHAURA who are the current officials and office bearers of Vigilance Homes Residents Association where they depose that the subdivision scheme approval and the Special Conditions granted to Kaputiei North / Isinya Block 2 / 473 and 474 and others for the area were duly approved by the Commissioner of Lands on 1st August, 2000. They contend that the Zoning Policy Regulations required that all the properties developed within the area comprising Vigilance Homes Residents Association estate shall comprise of a private dwelling house (excluding a guest house). They aver that on or about April 2018, the 1st Defendant commenced construction of a multi dwelling five (5) storey residential flat comprising nine (9) units per floor in contravention of the laid down Special Conditions attached to the Certificate of Lease. They consequently approached the Kenya Police Sacco and vide a letter dated the 3rd May, 2018, it wrote to the 1st Defendant requesting him to stop the construction forthwith and comply with acceptable buildings standards. They insist the 1st Defendant has disregarded the said notice and is proceeding with the construction. They reiterate that the 1st Defendant has not applied for the amalgamation of the suit lands from the relevant authorities, despite the fact that the buildings under construction occupies both sections of the said suit lands. Further, that the construction works being carried out, are in contravention of section 30(1), 32, 36 of the Physical Planning Act and Section 58 of the Environmental Management and Coordination Act 1999.  They state that they shall suffer irreparable damage if the 1st Defendant is not restrained as their properties will be devalued and their will be increased pollution, number of residents, demand for water and risks to security threats. They claim the 2nd Defendant has abdicated its responsibility by licensing and issuing development permission for the construction of a multi dwelling residential despite the development zoning which is not permissible in their estate.

The 1st Defendant JACKSON NGELAI OLECHUTA has opposed the application and filed a replying affidavit where he contends that the Plaintiffs have not procured the consent of all the 1000 members of the association as this is a representative suit, are malicious as well as pursuing a personal interest. He confirms being the legal proprietor of the suit lands. He insists he has complied with the Special Conditions as he has built a private dwelling house (mansion) with all the requisite approvals. He contends that he has built a private dwelling comprising two bedrooms on the ground floor and three bedrooms on the 1st floor just as the Plaintiffs who built theirs. He denies being served with a notice nor letter from the Applicants. He insists he is not in breach of any law. He reiterates that he built on plot 2/474 while plot 2/ 473 is undeveloped, hence he did not require amalgamation. He reiterates that the Applicants will not suffer irreparable damage whatsoever but if the orders sought are granted, he will suffer irreparable damage. He avers that he was procedurally granted all the requisite approval by the 2nd Defendant and has not built a nine (9) storey building for residential purposes but a private dwelling house. He explains that on 29th April, 2018, the Applicants demolished his building occasioning him a loss of Kshs. 1. 2 million and he reported the incident to Kitengela Police Station. Further, that this is what prompted the Applicants to file this suit where they were granted ex parte orders with finality without him being given an opportunity to be heard.

Both the Applicants and the 1st Defendant filed their respective submissions that I have considered.

Analysis and Determination

Upon perusal of the Notice of Motion dated the 9th August, 2018 together with the supporting and replying affidavits including the parties' submissions, the only issue for determination at this juncture is whether the interim injunction sought by the Plaintiffs ought to be granted pending the outcome of the suit.

It is not in dispute that the 1st Defendant is the owner of the suit lands and commenced constructing thereon. It is further not in dispute that the Applicants’ plots neighbor the suit lands. What is in dispute is the claim by the Applicants that the 1st Respondent has violated the Special Conditions in the lease and through approval of the 2nd Respondent, commenced constructing a multi dwelling unit on the suit lands and yet the same is meant for a single dwelling. This fact is denied by the 1st Respondent. The 2nd Respondent however did not file a replying affidavit to oppose the claim.

The principles for consideration in determining whether temporary injunction can be granted or not is well settled in the case of Giella Vs. Cassman Brown & Co. Ltd (1973) EA 358.

In line with this principle, the Court will proceed to interrogate whether the applicants have made out a prima facie case with a probability of success at the trial.

In the first instance as to whether the applicants have demonstrated a prima facie case with probability of success, I note the Applicants are the officials of the Vigilance Homes Residents Association estate. They explain that there are Zoning Policy Regulations governing the said estate which require all the properties developed within the area to comprise of a private dwelling house (excluding a guest house). They state that the 1st Defendant has contravened this regulation, which fact he denies. Further, that despite the Kenya Police Sacco sending a letter dated the 3rd May, 2018, to the 1st Defendant requesting him to stop the construction forthwith and comply with acceptable buildings standards, he refused and continued. It is their claim that they will be prejudiced if the construction is allowed to proceed. In reference to the Special Conditions attached to the lease of the 1st Defendant, it indeed indicates at No. 3 that the land and buildings shall only be used for one private dwelling house and at No 4; That the buildings on the land shall not cover more than 50 % of the area. From this I infer that the 1st Defendant accepted to adhere to the Special Conditions. Which now brings me to the dispute herein. The 1st Defendant insists he has not violated the Special Conditions and proceeded to build based on the approvals. Looking at annexure JNO 4 which is an approved plan from the County Government of Kajiado, it shows the plan for a single dwelling unit and not a multi dwelling unit as alleged by the Applicants. The Applicants have not annexed any documentation to show the house being built on the suit lands is several storeys as alleged. In the circumstances and based on the evidence presented, I am unable to decipher of the Applicants have established a prima facie case to warrant the granting of an injunction.

On the second principle as to whether the Plaintiffs stands to suffer irreparable loss, which cannot be compensated by way of damages. The Applicants claim their property will be undervalued and there will be pollution, increased security risks, pressure on water including increased population if the 1st Defendant proceeds with his development. I note the 1st Defendant obtained approval of the building plan from the County Government of Kajiado that is mandated to do so. I wish to refer to the Case of Nguruman Ltd. Vs. Jan Bonde Nielsen CA No. 77 of 2012, wherethe Court of Appeal held that in an application seeking injunctive  relief, speculative injury cannot suffice and there must be more than unfounded fear and the injury should be actual as well demonstrable which cannot be compensated by damages. In the current scenario, it is my considered view that the Plaintiffs’ injuries are speculative as they have not demonstrated the harm they stand to suffer if the 1st defendant continues to build on the suit lands.

On the question of balance of convenience, from the evidence presented by the parties, I am not in doubt that at this juncture, the balance indeed tilts in favour of the 1st Defendant who obtained proper approvals from the 2nd Defendant before undertaking construction on the suit lands.

In the circumstances, I find the Notice of Motion dated the 9th August, 2018 unmerited and will disallow it.

I direct the 2nd Defendant’s Director of Housing and County Physical Planner in collaboration with the parties herein to undertake a site visit within two weeks from the date hereof and establish the type of dwelling being constructed on the suit land.

I direct the parties to comply with Order 11 and set the suit down for hearing on a priority basis.

Dated signed and delivered in open court at Kajiado this 7th May, 2019

CHRISTINE OCHIENG

JUDGE