GRACE WAIRIMU SORORA v CITY COUNCIL OF NAIROBI [2011] KEHC 2066 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ELC. 340 OF 2010

GRACE WAIRIMU SORORA.....................................................................................................................PLAINTIFF

Being the administration of the estate ofFrancis Sorora Oloitiptip (Deceased)

V E R S U S

CITY COUNCIL OF NAIROBI.................................................................................................................DEFENDANT

R U L I N G

There is no dispute that the suit property, that is L.R. No. 209/9749, belongs to the deceased Francis Sorora Oloitiptip and that the Plaintiff is holder of a limited grant (“GWS1”) and thereby authorized to bring this suit on behalf of the Estate. On the suit land is operated Zam Zam Bar & Restaurant. On 9th July 2010 the Defendant served the Plaintiff with an Enforcement Notice under section 30 of the Physical Planning Act (Cap.286) asking her to remove illegal structures and to cease to occupy the same. The Notice was for 7 days and she was warned that if she did not comply the Defendant was going to demolish the structures. This is what forced her to file this suit for a permanent injunction. In the interim, she sought a temporary injunction under Order 39 rules 1, 2 and 9 of the Civil Procedure Rules.

In the plaint and in the supporting affidavit, the Plaintiff stated that they have constructed a temporary structure and sewer on the suit property and that this was done with the approval of the Defendant. The replying affidavit indicates that the Defendant did not approve the offending structures. No approval was produced by the Plaintiff. The structures would prima facie be illegal and therefore liable to demolition.

There is no evidence that the Plaintiff would suffer irreparable loss or injury which damages cannot adequately compensate, or which the Defendant would be unable to pay.

The balance of convenience should tilt in favour of the Defendant who is executing its mandate under the Physical Planning Act to demolish a structure in respect of which there is no approval.

On basis of Giella –Vs- Cassman Brown & Co. Ltd [973] EA 358, I dismiss the application with costs.

DATED AND DELIVERED AT NAIROBITHIS 14TH DAY OF MARCH 2011

A.O. MUCHELULE

J U D G E