Wangai v County Government of Nakuru (Environment and Land Case Civil Suit E11 of 2022) [2022] KEELC 13467 (KLR) (13 October 2022) (Ruling)
Neutral citation:
[2022] KEELC 13467 (KLR)
Republic of Kenya
Environment and Land Case Civil Suit E11 of 2022
LA Omollo, J
October 13, 2022
Between
Henry Muya Wangai
Plaintiff
and
County Government of Nakuru
Defendant
Ruling
Introduction
1.This ruling is in respect of the plaintiff/applicant’s notice of motion application dated March 17, 2022 which is expressed to be brought under order 40 rules 2, 3(3), 4(1) and (5), order 51 of the Civil Procedure Rules, 2010, sections 1, 1A, 3, 3A and 63(E) of the Civil Procedure Act.
2.The application seeks the following orders:a.Spentb.That pending the hearing and determination of this application and the main suit, this honourable court be pleased to issue an order directing that the status quo be maintained on the suit lands and the defendant/respondent either by themselves, their servants, allottees, agents and/or persons or anybody acting in their instructions to cease and/or stop trespassing unto the plaintiff/applicant’s parcels of land known as Njoro/Ngata Block 4/1480, 1481, 1482, 1483 and 1484 (Rumwe) without the applicant’s written consent.c.That pending the hearing and determination of this application inter partes and the main suit, there be orders of temporary injunction restraining the defendant/respondent either by themselves, their servants, allottees, agents, contractors, engineers, representatives and/or persons or anybody acting in their instructions or any way whatsoever from trespassing, entering, constructing any drainage system with intend to direct drainage water and waste onto the access road to the plaintiff’s parcel of land or interfering, disturbing the plaintiff/applicant’s occupation and enjoyment of parcels of land known as title nos Njoro /Ngata Block 4/1480, 1481, 1482, 1483 and 1484 (Rumwe).d.That pending the hearing and determination of this application and the main suit, this honourable court be pleased to issue an order to stop any temporary or permanent drainage systems intended to be constructed by the defendant/respondent’s agents or servants on to the applicant’s parcels of land Title No’s Njoro/Ngata Block 4/1480, 1481, 1482, 1483 and 1484 (Rumwe) immediately.e.That in the alternative to prayers 2, 3, 4 and 5 above, an order be issued declaring that the defendant/respondent and its servants/agents are trespassers on the applicant’s parcels of land Title No’s Njoro/Ngata Block 4/1480, 1481, 1482, 1483 and 1484 (Rumwe) thus should cease and/or stop immediately or the OCS Central Police Station/ any security personnel do arrest the defendant/respondent’s agents or servants and charge them accordingly pending the hearing and determination of the main suit.f.That costs of this application be borne by the respondent.
3.The application is based on the grounds on its face and supported by the affidavit sworn on March 17, 2022 by one Henry Muya Wangai.
Factual Background.
4.The plaintiff/applicant commenced this suit vide a plaint dated March 17, 2022 where he prays for judgement against the defendant/respondent for:a.A declaration that parcels of land Title Nos Njoro/Ngata Block 4/1480, 1481, 1482, 1183 and 1484 belong to the plaintiff herein.b.A permanent injunction be issued against the defendant to stop the construction of the drainage systems intended to be constructed to direct water and waste on the plaintiff’s parcels of land Title No’s Njoro/Ngata Block 4/1480, 1481, 1482, 1483 and 1484 (Rumwe) and in default the OCS Central Police Station do proceed to arrest the defendant’s agents/servants if they continue.c.Costs of this suit.d.Interests thereof.e.Any other further relief this honourable court may deem fit or just to grant.
5.The defendant entered appearance on April 4, 2022 but did not file any statement of defence.
6.This matter first came up on March 18, 2022 and the court gave directions that the plaintiff/applicant serves the application on the defendant/respondent and upon service the defendant/respondent was to file a response to the application.
7.The matter came up for inter partes hearing on May 5, 2022 the court directed that the application be heard by way of written submissions.
8.The background is set out to understand the nature of proceedings and appreciate the orders sought.
The plaintiff/applicant’s Contention.
9.The plaintiff/applicant contends that he is the legal proprietor of land parcel No’s Njoro/Ngata Block 4/1480, 1481, 1482, 1483 and 1484 (Rumwe) which are adjacent to Njoro town where he has settled since the year 1979. He has attached copies of the title deeds.
10.The plaintiff/applicant further contends that the stretch of his land is 9 acres and that is where the water and waste shall pass thus making it all a swampy area or a dam in the making.
11.The plaintiff/applicant also contends that the respondent opted to use the long route on his land which will cause damage to his parcels of land as compared to the set-out route on the map measuring 9 feet or thereabout.
12.He contends that the initial Jewatho map shows all public utilities including roads leading to various places and that the respondent’s agents and servants went beyond the 9 meters space left for the road by the Kenya National Highway Road Authority and now intends to trespass onto his parcels of land captioned thereon. A copy of the map is attached to the supporting affidavit.
13.The plaintiff/applicant contends that the respondent’s agents and servants did not consult him on the construction of the drainage system to direct water and waste but they want to use force contrary to the law.
14.The plaintiff/applicant further contends that the road and drainage system was supposed to follow the correct channel but the respondent’s agents want to divert it onto his parcels of land contrary to his wishes.
15.The plaintiff/applicant also contends that his parcels of land is being used by a company known as Monsanto Ltd to carry out research and that if the drainage system is allowed to go through his parcels of land it will cause a lot of damage thus making him to suffer irreparably.
16.He contends that if the respondent’s agents and servants will be allowed to construct any drainage system to direct water and waste onto his parcels of land it will render the same to become a swampy place not fit for any developments thus losing his current source of income.
17.The plaintiff/applicant contends that the respondent’s agents and servants have already brought the construction machines to the site thus making him worried that anything can happen any time from now. He has attached a photograph of the construction machine.
18.The plaintiff/applicant further contends that the respondent’s servants and agents have no legal right to commence constructing any drainage systems to direct water and waste onto his parcels of land through force without consulting and agreeing to his demands.
19.The plaintiff/applicant also contends he has done all he can to warn the respondent to cease their unconstitutional acts of trespass but all in vain. He has attached a copy of a demand letter.
20.He contends that that it come to his attention that the respondent was in the process of constructing an illegal drainage system intended to direct water and waste onto his parcels of land.
21.He also contends that the survey work was done secretly and the county engineer went to the suit properties with the area MCA and the site constructor without his knowledge and/or consent.
22.He further contends that the drainage system passing through his parcels of land is blatant defiance of the law and is illegal and that his fear is that his land shall be rendered useless as it shall become a swampy dam or damp that is unfit for human cultivation.
23.The plaintiff/applicant contends that due to the respondent’s unconstitutional acts that they are intending to do this honourable court needs to intervene and stop them forthwith.
24.The plaintiff/applicant concludes his deposition by stating that his application has satisfied all the requirements necessary in the grant of an injunction and that he would be prejudiced if the application is not allowed as prayed.
The defendant/respondent’s Response.
25.The defendant/respondent filed a replying affidavit sworn on May 24, 2022 by one Symon Kariuki who is works officer.
26.He contends that the defendant received funds from one of its partners to aid in the construction of the drainage system at Jewatho in Njoro Sub- County.
27.He further contends that the identified area had been marred by incidences of poor drainage system during the rainy season and the members of the community had on several occasions approached the officials of the defendant/respondent within the area seeking their intervention.
28.He also contends that before the commencement of the project, the defendant/respondent conducted public participation where the members of the public within the area were sensitized and notified of the project.
29.It is his contention that the said construction has neither gone beyond the 9M space left by the Kenya National Highway Road Authority nor trespassed onto the suit parcels of land.
30.He contends that the said area of contention is a road reserve as evidenced by the survey map and that as part of the project team, a surveyor was present and the area for construction of the drainage system was clearly demarcated.
31.He further contends that several meetings have been conducted with the residents of the area and the plaintiff/applicant was also shown the extent of his parcels of land and was satisfied with the same.
32.He also contends that the drainage system has made a provision for storm water drainage and there is no likelihood of the water draining into the residents’ parcels of land or causing the area to be swampy.
33.It is his contention that the construction of the said drainage has been completed and a certificate of substantial completion was issued on December 10, 2021 to the contractor.
34.He contends that the injunctive orders being sought cannot be issued since the project is complete and the land on which the drainage system has been constructed on is public land.
35.He further contends that the drainage system is for the benefit of the residents of the area, the plaintiff/applicant being one of the residents.
36.He ends his deposition by stating that the application is mischievous and brought in bad faith and is an abuse of the process of the court as the applicant herein has not followed due process.
Plaintiff/applicant’s Response To The replying affidavit.
37.Upon service of the defendant/respondent’s replying affidavit the plaintiff/applicant filed a further affidavit sworn on May 31, 2022.
38.He contends that he did not issue any consent to allow the drainage system to pass through his land.
39.He further contends that the area has a public utility land to be used for such purposes but which was misappropriated by the council officials and sold off to some unknown persons.
40.He also contends that he stands to suffer irreparably if this menace is not controlled plus other land users on his parcel of land.
41.It his contention that the 6 meters road has been excised from his land without his consent and a trench dug in for 1.5 meters where all the Jewatho drainage system is directed.
42.He further contends that no vehicle can access the dug-out trench or even any tractor for ploughing purposes.
43.He also contends that he fears that his large parcel of land is going to waste and that no compensation has been made to him and there are no prospects of any such arrangements.
44.It is his contention the council officials indicate that the road is only temporary which him and the surrounding community highly doubt.
45.He contends that the neighborhood is uncomfortable with the road being created as it has caused damage to their crops and cattle trying to cross the road.
46.He further contends that the road diversion has caused damage to their land, crop and animals and should pass through the official gazette and designated area and not through their land.
47.He ends his deposition by stating that the suit property is not a public road and the road should pass where it is designated to pass and not on his land and that the court should find that the issuance of a completion certificate to be illegal and fraudulent.
Issues For Determination.
48.The plaintiff/applicant filed his submissions dated May 30, 2022 on May 31, 2021. The defendant/respondent also filed its submissions dated May 31, 2022.
49.The plaintiff/applicant also filed a reply to the defendant’s submissions and the same is dated June 27, 2022.
50.The plaintiff/applicant in his submissions identified the following issues for determination:a.Whether the plaintiff/applicant should be granted the orders sought in the application.b.Whether the plaintiff/applicant was consulted by the defendant/respondent’s together with its agents before the work begun to pass the drainage unto the applicant’s parcels of land titles Nos Njoro/Ngata Block 4/1480, 1481, 1482, 1483 and 1484 (Rumwe).c.Who should bear the costs of this application.
51.On the first issue for determination, the plaintiff/applicant relied on the cases of B2 Yatta Ranching Co-operative Society Ltd v County Council of Kitui & 12 others [2020] eKLR and John Cheruiyot Sang v Hillary Sang & 3 others [2017] eKLR and submitted that he has a prima facie case with high chances of success as envisaged in the case of Giella v Cassman Brown & Co Ltd [1973] EA 358 at Page 360.
52.On the second issue for determination, the plaintiff/applicant submits that based on the evidence that is on record there is no indication that he was ever consulted by the defendant/respondent or its agents before the work of the drainage begun. He also submitted that the defendant/respondent wants to disturb him without any valid reason and the court should intervene and stop it forthwith.
53.On the third issue, the plaintiff/applicant submits that as a general rule, costs follow the event in that once the application has been allowed then the applicant should be awarded costs as well.
54.The plaintiff/applicant concludes by stating that it is in the interest of justice that his application be allowed as prayed.
55.The defendant/respondent in its submissions identified only one issue for determination;
56.The defendant/respondent relied on the case of Giella v Cassman Brown & Co Ltd [1973] EA 358 as was restated in the case of East African Development Bank v Hyundai Motors Kenya Limited [2006] eKLR and submitted on each limb of the test that the court has to consider before granting an injunction.
57.On whether the plaintiff/applicant has a prima facie case with a probability of success the defendant/respondent relied on the case of Margaret Njoki Migwi v Barclays Bank of Kenya Ltd [2016] eKLR and submitted that the plaintiff/applicant has not demonstrated that he has any proprietary rights that have been infringed upon by the defendant/respondent to warrant the intervention of the court.
58.The defendant/respondent further submitted that the construction of the drainage system followed the due process as it was constructed on a road reserve.
59.On whether the plaintiff/applicant will suffer irreparable damage, the defendant/respondent submitted that this is the second limb of the test set in the Giella case and it holds that an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.
60.The defendant/respondent further submitted that the plaintiff/applicant claims that the water from the drainage system will flow to his parcels of land but has not tendered any evidence to confirm this and that the construction of the said drainage has in fact addressed the issue of flooding in the area.
61.The defendant/respondent relied on the case of Director of Public Prosecutions v Justus Mwendwa Kathenge & 2 others [2016] eKLR and submitted that the project is complete and the drainage system is already in use.
62.On the balance of convenience, the defendant/respondent submitted the plaintiff has not satisfied the first two limbs of the test set out in the Giella case and that to that extent the balance of convenience tilts in its favor. The defendant/respondent relied on the case of Brian Asin & 2 others v Wafula W Chebukati & 9 others [2017] eKLR.
63.The defendant/respondent then sought that the plaintiff/applicant’s application be dismissed with costs.
64.The plaintiff/applicant filed a Reply to the defendant’s Submissions and submitted that there is no dispute that land title No’s Njoro/Ngata Block 4/1480, 1481, 1482, 1483 and 1484 (Rumwe) belong to him and not the county government.
65.The plaintiff/applicant further submitted that the acts of the defendant/respondent have infringed his rights which has occasioned loss and damages upon him which constitutes a prima facie case with high chances of success.
66.The plaintiff/applicant also submitted that he is of old age and cannot access the suit property as it has been forcibly tampered with and trespassed upon by the defendant/respondent who has caused irreparable damage that cannot be cured by means of compensation.
67.The plaintiff/applicant submitted that garbage is being dumped onto his parcel of land and that he does not want monetary compensation but wants the garbage removed from his land.
68.The plaintiff/applicant concluded his submissions by submitting that the balance of convenience lies in his favour and prayed that the case be upheld as against the defendant.
69.It is my view that the issues that arise for determination are as follows:a.Whether the plaintiff/applicant has met the criteria for grant of orders of a temporary injunction pending the hearing and determination of the suit.b.Whether the court should grant orders of status quo pending the hearing and determination of the suitc.Which party should bear the costs of the application?
ANALYSIS AND DETERMINATION.
70.I have taken into consideration the application, the affidavit in support of the application, the replying affidavit and the rival submissions filed by both the plaintiff/applicant and the defendant/respondent.
A.Whether the plaintiff/applicant has met the criteria for grant of orders of temporary injunction pending the hearing and determination of the suit.
71.The guiding principles on grant of orders of temporary injunction are set out in the case of Giella v Cassman Brown (1973) EA 358 and restated in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others CANo 77 of 2012 (2014) eKLR where the Court of Appeal stated as follows:
72.The Court of Appeal in the case of Yellow Horse Inns Limited v Nduachi Company Limited & 2 others [2017] eKLR stated as follows:
73.The plaintiff/applicant in this matter has to first establish prima facie. The court in the case of Mrao Ltd v First American Bank of Kenya Ltd (2003) eKLR stated as follows as to what constitutes a prima facie case:
74.The plaintiff/applicant in support of his application has attached copies of title deeds for land parcel No’s Njoro/ Ngata Block 4/1480, 1481, 1482, 1483 and 1484 (Rumwe) which shows that he is the registered owner of the said parcels. His apprehension is that his right to the suit properties is on the verge of infringement.
75.The defendant/respondent has offered an explanation and/ or rebuttal to the plaintiff’s claim. It is therefore my considered view that the plaintiff/applicant has ably established a prima facie case.
76.The second principle that the plaintiff/applicant must demonstrate that irreparable injury will be occasioned to him if an order of temporary injunction is not granted.
77.The Court in the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) eKLR stated as follows on what constitutes irreparable damage:
78.The plaintiff/applicant alleges that the defendant/respondent has trespassed onto his suit properties and is in the process of constructing a drainage system.
79.The defendant/respondent on the other hand explains that it has constructed the drainage system on the nine meters left by the Kenya National Highway Road Authority and has not trespassed onto the suit properties.
80.The defendant/respondent further alleges that the area of contention is a road reserve and that the construction of the said drainage has been completed and a certificate of Substantial completion was issued on December 10, 2021. The said certificate is attached to the respondent’s replying affidavit.
81.From the material placed before this court, it is evident that the actions apprehended and complained about by the plaintiff /applicant have been actualized. The plaintiff/applicant in his further affidavit, however, urges this court to find that the certificate of substantial completion is illegal and fraudulent but has not laid a basis for this court to make this finding.
82.The plaintiff/applicant also states that 6 meters has been excised from his land without his consent and a trench dug that is 11/2 meters where all the drainage system is directed. I am also not convinced that this act as complained of by the plaintiff/applicant is such that will cause him irreparable injury. There shall be other remedies open to him to protect himself from the consequences of the actions by the defendant/respondent.
83.The plaintiff/applicant has failed to meet the second criterion for the grant of a temporary injunction. He has not demonstrated what injury will be occasioned to him in the event that the orders of temporary injunction are not granted.I also note that the plaintiff’s complaint keeps metamorphosising. He starts with a prayer for an injunction to stop the construction of a drainage system, he complains that garbage is being dumped on the suit parcel, he also complains that the defendant has encroached/trespassed upon his land and he finally complains of a road that has been built on his parcel of land.
84.The third principle is that where the court is in doubt, then it should decide the matter on a balance of a balance of convenience. The court in the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] defined the balance of convenience as follows:
85.It is my view that the balance of convenience does not tilt in favor of the plaintiff/applicant. It is also important to mention that the project complained of and/or apprehended is for the benefit if the public and I am yet to hear the views from the public as alluded to by the plaintiff/ applicant. The plaintiff cannot purport to speak for members of a community without their authority and without them being parties to this suit.
86.This court is not in doubt and if is not necessary to decide this application on a balance of convenience.
87.In the final analysis, the plaintiff/applicant has failed to meet the criteria for grant of orders of temporary injunction.
B.Whether the court should grant orders of Status Quo pending the hearing and determination of the suit.
88.The plaintiff also seeks for the grant of orders of status quo. status quo is a Latin word which means “the situation as it exists”.
89.Practice direction No 28 (K) contained in practice directions on proceedings in the environment and land courts, and on proceedings relating to the environment and the use and occupation of, and title to land, published vide Gazette Notice No 5178 provides as follows;28.In addition to the matters contained in order 11, rule 3 of the Civil Procedure Rules, 2010, the following are the orders/directions that may be issued by a Judge during a pre-trial conference:…(k)Where appropriate, the issuance of conservatory orders or maintenance of status quo until a matter is fully and finally determined.…
90.The court in the case of Republic v National Environment Tribunal, Ex-parte Palm Homes Limited & another [2013] eKLR stated as follows:
91.The court in the case of TSS Spinning & Weaving; Company Ltd v Nic Bank Limited & another [2020] eKLR stated as follows on the purpose of a status quo order:
92.The court also in the case of Kenya Airline Pilots Association (KALPA) v Co-operative Bank of Kenya Limited & another [2020] eKLR stated the purpose of a status quo order as follows:
93.The court in the case of Boabab Beach Resort as quoted by F Tuiyot Saifudeen Abdullahi & 4 others in Mombasa High Court Misc Civil Cause No 11 of 2012 stated as follows on the nature of a status quo order:
94.In the present matter, the plaintiff/applicant is seeking for an order of status quo pending the hearing and determination of the present suit. As indicated in the various court decisions set out above the purpose of the orders of status quo is to preserve the subject matter as it is on the date the order is granted.
95.For the foregoing reasons, I find that no prejudice will be occasioned to either party in granting an order of status quo.
C. Which party should bear the costs of the application?
96.On the question of costs of the application, the general rule is that costs shall follow the event in accordance with the Provisions of section 27 of the Civil Procedure Act (Cap 21).
97.It is also important to note that costs are granted at the discretion of the court.
DISPOSITION.
98.The upshot of the foregoing is that the notice of motion application dated March 17th, 2022 is allowed only to the following extent;a.The status quo shall be maintained pending the hearing and determination of this suit.b.The costs of this application shall abide the outcome of the main suit.
99.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 13TH DAY OF OCTOBER 2022.L. A. OMOLLOJUDGEIn the presence of: -No appearance for the plaintiff/applicant.Mr. Kinunthia for Litunda for the defendant/respondent.Court Assistant; Monica Wanjohi