ISSUE No. a) Whether the plaintiff has met the threshold for granting an order of permanent injunction restraining the defendant from encroaching, putting up structures building and in any way modifying the suit property.Brief Facts
21.Before proceeding further with the analysis of the above framed issues, it is significant that I extrapolate on the facts of this case briefly. From the filed pleadings, the Plaintiff is the bona fide legal and rightful owner of the suit property. She purchased it from one Beja through a sale agreement dated 10th September, 2006 and was issued with a Letter of Allotment dated September 30, 2011. She did produce all these prerequisite legal documents to support this fact. There was no dispute over this issue at all. She constructed a Swahili structure on it for residential purposes. The suit property is adjoining the property belonging to the Defendant for this purpose known as Plot Block B. It’s alleged that, for no apparent good reason or justifiable cause, all of a sudden the Defendant decided to illegally and unlawfully set up foundation of structures and development on the perimeter wall of the residence belonging to the Plaintiff.
22.This was extremely dangerous as it was risking the foundational structure and existence of the Plaintiff’s house in Block C. He breached the laid - down requirement under the Physical Planning Regulations and Building Code for all these settlements for occupiers to main at least a three (3) feet distance to avoid congestion, interfering with other peoples foundation, to allow free flow of rain storm, sewage and access. It also blocked access of natural light into the house of the Plaintiff taking that the house for the Defendant was so close to the door of the house of the Plaintiffs. This compelled her to be using electricity supply during the day an unnecessary expense. Unfortunately, despite being served with all the pleadings and summons, the Defendant never entered appearance nor Defence to the case. Thus, the substantive suit was undefended.
23.Now turning to the issue under this sub – heading. For clarity sake, it is important to critically assess the two forms of injunctions herein. A mandatory injunction is different from a prohibitory injunction. While a prohibitory injunction the Applicant must, as was stated in the celebrated case of “Giella v Cassman Brown & Co. Ltd  EA 358, establish the existence of a prima facie case with high chances of success, and that he would suffer irreparable loss/damage which could not be adequately compensated by an award of damages if the injunction was not granted, and further that the balance of convenience tilted in his favour. For the orders of mandatory Injunction, an Applicant must in addition, establish the existence of special circumstances. Furthermore, the applicant must prove the case on a standard higher than the standard in prohibitory injunctions.
24.Generally speaking, an Applicant is entitled to be granted the Permanent and/or Mandatory Injunction restraining the Defendant herein on his suit property. Unlike Temporary Injunction which are granted only to be in force for a specified time or until the issuance of further orders from Court, Permanent Injunction are rather different, in that they are perpetual and issued after a Suit has been heard and finally determined.
25.Legally, permanent Injunction fully determines the right of the Parties before the Court and is normally meant to perpetually restrain the commission of an act by the Defendant in order for the rights of the Plaintiff to be protected. This Court has the powers to grant the Permanent Injunction under Sections 1A, 3 & 3 A of the Civil Procedure Code if it feels the right of a Party has been fringed, violated and/or threatened as the Court cannot just seat, wait and watch under these given circumstances.
26.It’s the effect of the order that matter as opposed to it mere positive working which makes it mandatory. The circumstances under which the Court would grant a Mandatory Injunction was well stated out by the Court of Appeal in the Case of “Malier Unissa Karim v Edward Oluoch Odumbe  eKLR as follows:-
27.In the case of ‘Kenya Breweries Ltd & another v Washington O. Okeya  eKLR, the Court of Appeal stated as follows on mandatory injunctions.The above-cited cases lay down the principles of law to be considered in both an application for a prohibitory injunction and mandatory injunction, the difference that stands out between these two orders is that for mandatory injunction, the applicant must establish the existence of special and exceptional circumstances that warrant the granting of orders of mandatory injunction.
26.In this instant application, the Plaintiff through the filed pleadings and the testimony adduced in Court and which was never rebutted, she demonstrated that she was the registered owner to the suit land. Clearly, she has “a prima facie” case. In the course of time, she undertook several development activities on the suit land which included the construction of a residential Swahili house on it in compliance with the law. She left a three (3) feet space in between her property and the others. Her plot is adjucent to that of the Defendant.
27.For no apparent good reason at all, the Defendant started constructing which encroached into the plot belonging to the Plaintiff and also occupying the three (3) feet space reserved and as required by law. His construction was done upto the door and verandah of the Plaintiff’s house. As a result, she is denied access road, blockage of stormy and rain water, sewage, emission of natural light causing her to use electricity during the day as the house gets dark, fresh air and so forth. Her wall has cracked compelling her to incur substantial loss and expense which were not anticipated. He is in breach of the law. Despite all efforts made to make the Defendant stop the constructions and/or demolish the illegal structures have been to no avail. The state of affairs necessitated the filing of this suit against him. In the given circumstances, therefore, it is my view that the balance of convenience tilts towards favouring the Plaintiff. In summary, all the conditions for the grant of prohibitory injunction and mandatory injunction have been fully met.
ISSUE No. b) Whether the plaintiff should be granted an order of mandatory injunction compelling the defendants to demolish the structures built by the defendants on the said plot.
26.Without wanting to belabor the point, the Plaintiff has already demonstrated before this Court the issue of the ownership of the suit land. She has established having suffered substantial loss, injury and expense at the behest of the Defendant’s illegal acts of omission and commission. Further, that the balance of convenience tilts to her favour. Despite all efforts made the Defendant has refused to cooperate with the Plaintiff. He never bothered to file any defence to the case making the suit go undefended. In my view, these are very special circumstances whereon the granting of Mandatory injunction orders need be considered.
27.The Plaintiff is entitled to protection of her private property at all costs as provided for under the provision of Article 40 (1), (2) and (3) of the Constitution. The provision of Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010 on the preservation of property comes in handy. In the given circumstances, therefore, in the interest of natural justice, equity and conscience, its just fair that the Plaintiff is granted the mandatory injunction orders sought. There should be an order of demolition of the illegal structures caused onto the perimeter wall and property of the Plaintiff by the Defendant in accordance with the laid - down procedures and laws – The Physical Planning Act and the Building Code whatsoever. .
ISSUE No. c) Whether the parties are entitled to the relief sought.
30.Under this Sub heading and having considered all the surrounding facts and inferences made out here, the Court has concluded that the Plaintiff is entitled to all the relief sought. This conclusion is justified by the fact that the Defendant constructed a house on his property but in total contravention of the Physical Planning Act and Building Code which made it mandatory for builders to leave three (3) feet space in between structures. As a result it caused cracks onto the house of the Plaintiff and also blocked the natural light forcing her to be using electricity during the day. She produced a floor Plan as Plaintiff Exhibit No. 2, Surveyors report as Plaintiff Exhibit No. 3 and Photographs as Plaintiff Exhibit No. 7 which manifested the extent of damage to her house. All these were caused by the negligence by the Defendant.
31.It was attested that the Defendant’s house was so close thus restricting access of the Plaintiff and her family to the house. It obstructed drainage making storm water to flow through to her veranda which caused further damage to the foundation of the house and water stagnation on her compound. That the continuous construction of the house by the Defendant posed great risk to the existence of her residential house as she had been forced to cause repairs to the emerging cracks on the wall resulting from violation of the three (3) feet space permitted by the County Government of Mombasa on Swahili Houses. It was the testimony by the Plaintiff that despite warning the Defendant had continued to disregard it. Indeed, the Defendant had violated the provisions of Physical Planning Act and Building Codes in respect to erecting a partly/residential building of the structure resulting to damages to the property by the Plaintiff. He had violated the provisions of Article 40 of Constitution of Kenya and several others of Physical Planning Act and Building Code. Further the Defendant failed to seek relevant approval from the County Government of Mombasa as per the revised Building Code 2006 – meaning the design and construction of the Defendant’s building contravened Clause Article 5 of the said revised Code and AA33 whereby he fa to take into consideration the next building or the right of way or even right to passage within that area.It provides that:-
32.This provision was intended to ensure that any building being erected must confirm to the regulations put in place by an authority. In the present case, the County Government of Mombasa regulations on Swahili Houses was that they must be with a space of three (3) feet in between them to allow right of way and most importantly to avoid occasioning risk to the foundation structure of the next house. I also add also to avert other nuisance such as fire, sewage water drainage, rainfall, passage and so forth. Clauses BB55 of the Revised Building Code 2006 sets the measurement upon which residential houses shall be build next to another. It provides: -
33.Further Clause BB56.1 gives the measurement of 1.5 M for open space between two residential houses. It provides: -The Defendant encroached into the allowed 3 Feet which translated to 0.914M allowed by the County Government of Mombasa on Swahili houses thereby casing cracks onto the Residential House of the Plaintiff. I am persuaded by the legal ratio on the implication of failing to erect a building without comprising with the existing Building Code regulations and the case of “Kiogora Mutai v Chartwell Holdings Limited (Supra)Where court echoed the sentiments of the Arbitrator that any Builder Property Developer in every aspect of construction must strive always to be in compliance with the Building Code.
34.The Plaintiff is entitled to general damages. The house by the Defendant had been built so close to the door of the Plaintiff’s – blocking the flow of natural light and making her house dark during the day compelling her to be using electricity. The building had limited access to her house. She was compelled to be doing repairs to her cracked wall and also a threat to her foundation drainage and water system were broken. She estimated the damage to a sum of Kenya Shillings Two Million (Kshs. 2,000,000/=) for the nuisance caused. She will be granted the general damage as prayed. I have appreciated all the authorities cited by the Learned Counsel for the Plaintiff being:- Tim Mwai & 2 others (Supra) and Loyford Gitau Leonard (Supra); where an award of Kshs. 2,000,000/= was made as general damages for nuisance caused by trees, animals, smoke, dust.
ISSUE No. d) Who will bear the costs of the suit.
36.It is trite law that costs are at the discretion of the Honorable Court. Costs mean the award a party is granted at the conclusion of any legal action, process, cause or proceedings of any litigation. The proviso of Section 27 (1) of the Civil Procedure Act, Cap. 21 provides that the costs follow the events. By events it means the results of the legal action, process, cause or proceedings.
37.In the instant case, the case has been decided in favour of the Plaintiff herein. Therefore, it will be unfair not to award the Plaintiff who has spend a lot of time on this matter from filing the suit, preparing and conducting it upto its logical conclusion awaiting this Judgement. This also includes the numerous Court attendances undertaken by them. It is my informed view that the Defendant has to bear this Costs.