REPUBLIC  OF  KENYA

IN  THE  HIGH  COURT   OF  KENYA  AT   NAKURU

E.L.C NO 16 OF 2012

RAMADHAN MAKOKHA NOOR…………………PLAINTIFF

VERSUS

THE TOWN CLERK, MUNICIPAL COUNCIL OF NAKURU…………..…..1^ST DEFENDANT

JUMA KAHERO……………………………..2^ND DEFENDANT

RAJABU MURUMBA……………………….3^RD DEFENDANT

MABRUKAH SALIM…………………...…..4^TH DEFENDANT

ALI SHIBAN…………………………………..5^TH DEFENDANT

MOHAMMED JUMA KING’ORI………....6^TH DEFENDANT

ALI SALIM…………………………………….7^TH DEFENDANT

SHERIFA WAMBUI RASHID (sued in their Capacity as officials of DOLPHIN YOUTH GROUP)..8^TH DEFENDANT

RULING

1.By  Notice  of   Motion  dated  12^th  October,  2012 the  plaintiff, Ramadhan Makokha Noor, brought this  application against  the defendants seeking, among  other  orders; a temporary injunction to restrain the defendants/respondents by themselves, their servants and/or agents or any person acting on their behalf from putting up a water kiosk on Muranga road on the frontage to Plot No. Nakuru Municipality Block 13/294 (''suit property'') pending the hearing and determination of this suit.

2.The  applicant  relied on  the  grounds  stated  in his application as well as his  supporting   affidavit sworn on  12^th October, 2012; that  he is  the lawful owner and in occupation of the suit property; that the 2^nd-8^th respondents (the Youth Group), had started construction on Muranga road, denying him access to his property despite his protests to the 1^st respondent; that whereas he did not oppose the Youth group’s efforts to earn a decent living, he wished that they would do so without interfering with his constitutional right to property.

3. The application was not opposed. The 1^st respondent, Wilson Maroa, in a replying affidavit, sworn on 23^rd October, 2012, deponed that the 1st respondent was aware of the 2^nd-8^th respondents plan of putting up the water kiosk and had in fact given them permission to put up a temporary structure to supply water to the residents of Bondeni area, under the Council’s supervision; that what the Council did not authorise was the erection of a permanent structure as put up by the 2^nd-8^th respondents; that they did not involve the Council in their plans, a fact that led them to put up the structure on a road reserve not approved by the Council; that as a result of these actions by the youth, the Council had taken administrative action and halted the unauthorised construction after receiving numerous complaints from other stakeholders, including the plaintiff.

4. The 2^nd to 8^th respondents did not respond to the application despite being granted sufficient time to do so.

5. The plaintiff filed his written submissions on 14^th January 2014, dated 8^th January 2014.  In their written submissions, Counsel for the plaintiff reiterated their position as contained in the application and supporting affidavit. They also relied on the 1^st respondent’s replying affidavit that the Youth group did not have authority to construct the water Kiosk on the location that they did.

6.The  case  of  Giella  Vs  Cassman Brown ( 1973)  E.A   358, lays  down  the  principles  for  granting an  interlocutory  injunction  relief. The   court will consider whether:

1.    The  applicant  has shown  that  he  has  a  prima  facie   case  with  a  probability   of  success.

              2.    Damages will be an adequate remedy and

3.    On the  balance  of  convenience, should the  court  be in  doubt it  will determine  the  matter  on a balance  of  convenience.

7. To demonstrate that he has a prima facie case the plaintiff has exhibited various letters, including one by the 1^st respondent to the Youth group authorising the project as long as they complied with the Councils regulations and the project did not interfere with other road users. The 2^nd to 8^th defendants went ahead and set up the water kiosk but they did not follow the guidelines given by the Council and erected the water kiosk in a different place from the authorized location.

From the foregoing, I am satisfied that the plaintiff has established a prima facie case with a probability of success.

8. For the above reasons, I order that pending the hearing and determination of this suit, the 2nd to 8^th defendants are restrained by themselves, their servants and/or agents or any person acting on their behalf from putting up a water kiosk on Muranga road on the frontage to Plot No Nakuru Municipality Block 13/294. In the event that the water kiosk has already being erected on the unauthorised location, the structure to be pulled down within 14 days from the date hereof.

9. Costs of this application to be borne by the 2^nd to 8^th respondents.

Dated, signed and delivered at Nakuru this 3^rd day of October 2014.

L N  WAITHAKA

JUDGE

PRESENT

Ms  Wambugu holding brief for  Ms  Wanjiru for the  plaintiff/applicant

N/A for the defendants

Emmanuel  Maelo : Court  Assistant

L N WAITHAKA

JUDGE