Ali and 3 others v City Council of Nairobi

High Court, at Nairobi September 9, 2003

Ang’awa J

Civil Case No 820 of 2003

Civil Practice and Procedure - injunction – whether injunction can issue against the government – local authority – whether same principles applies to - sections 33 and 38 of the Physical Planning Act (cap 286) – entitlement of an individual appeal against decision of local authority thereunder.

The plaintiffs filed a civil suit together with an application seeking an injunction to prevent the City Council of Nairobi from interfering with the development and construction of multiple dwelling houses on a parcel of land. The defendant argued that non-compliance by the applicants with section 33 and 38 of the Physical Planning Act (cap 286) which requires a developer to first seek permission from a local authority to undertake certain developments, meant that the High Court had no jurisdiction to entertain the application.

Held:

1. Where one is dissatisfied with the decision of a local authority declining permission to undertake developments on a specified parcel of land, he is entitled to appeal aginst the said decision pursuant to the Physical Planning Act (cap 286).

2. The City Council of Nairobi is a local authority and just like the government no injunction can lie against it and its officers. The proper remedy in such course would be with an application by way of judicial review.

Application dismissed.

Cases

1. Narok County Council v Trans Mara County Council & another Civil Appeal No 25 of 1980

2. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696

3. Niazsons (K) Ltd v China Road & Bridge Corp (K) [2001] 2 EA 502

4. Nairobi City Council v Cris Evanand & Others High Court Civil Case No 851 of 2002

Statutes

1. Physical Planning Act (cap 286) sections 33, 38

2. Local Government Act (cap 265) section 270

3. Constitution of Kenya section 60

Advocates

Mr N L Hassan for the Plaintiff

Mr N Wanjeru for the Defendant

Ali Onamu Apidi v Shakeel Ahmed Shabir & another

High Court, at Kisumu September 2, 2003

Gacheche J

Civil Case No 353 of 2001

Civil Practice and Procedure – pleadings – plaint – verifying affidavit – affidavit betraying the correctness of the averments contained in the plaint – consequences of failure to have a verifying affidavit decompanying the affidavit.

Civil Practice and Procedure – pleadings - striking out of pleadings – grounds for striking out of pleadings - whether grounds should be complimentary to one another and or merged – Civil Procedure Rules order VI rule 13 (1) – consequences of contravention of the rule.

Affidavit – form of affidavit - endorsements on affidavits - affidavit failing to state the name of the person drawing it - Advocates Act section 35 - whether such affidavit proper.

Defamation - libel – defences – defence of qualified privilege – impeaching the defence of qualified privilege – allegations of malice - whether express or implied – requirement that particulars of the facts from which malice can be inferred where none has been satisfactorily pleaded.

The second defendant, by a publication in its daily newspaper reported the suspension of the plaintiff as the Treasurer of Kisumu Country Council for financial improprieties. In a subsequent publication, the second defendant cited the first defendant, then the Mayor of County Council as being opposed to the looting of Kisumu by chief officers and supporting the decision to send a number of people, including the plaintiff, on compulsory leave. The plaintiff sued for libel.

After the defendants filed their respective defences the plaintiff by chamber summons under order VI rule 13 (1) (b) (c) and (d) of the Civil Procedure Rules, sought to have the defences struck out and sought judgment on liability against them jointly and severally. The defendants opposed the application challenging its defects, frivolity and incompetence. Crucially they also opposed the application on the ground that there was no competent suit and that their defences raised triable issues.

Held:

1. It is a mandatory requirement under the Civil Procedure Rules order VII rule 2 that the plaint shall be accompanied by a verified affidavit.

2. The lack of a verifying affidavit to verify the averments contained in the amended plaint rendered the suit a nullity.

3. The grounds upon which one may file an application for striking out of pleadings under order VI rule 13(1) of the Civil Procedure Rules should never be merged or be complimentary to one another. The grounds should be separate.

4. The three grounds as set out in the application for striking out contravened the requirements of the Civil Procedure Rules as they complimented each other rendering the application fatally defective and it had to fail.

5. An affidavit should disclose the person who has drawn it and filed it. Failure to do so contravenes section 35 of the Advocates Act (cap 16) and renders the affidavit fatally defective.

6. The affidavit having been struck out, the application remained a mere empty shell with no support and whose chances of success would obviously be nil.

7. The defence of qualified privilege in defamation can be destroyed by malice whether express or implied. It is however for the plaintiff to impute the malice to the satisfaction of the Court.

8. It is a mandatory requirement under order VI rule 6A (3) for the plaintiff to file a reply to the defences giving particulars of the facts and matters from which the malice is to be inferred. It is not for the Court to infer such malice where none has been satisfactorily pleaded.

9. The denial by the defendants that their actions were unlawful or malicious raised triable issues and the denials that they set up were a sufficient traverse of the allegations in the plaint. This was therefore not a plain and obvious case where the defendants should be deprived of their rights to have their defences tried by way of a proper trial.

Application struck out with costs to the defendants/respondents.

Cases

Orbit Chemical Industries Limited v Maytrade Limited and another Civil Case No 631 of 1998

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 6A(3); 13 (1)(b), (c) & (d), order VII rule (2)

2. Advocates Act (cap 16) section 35