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ELCDismissedMSA HCCC (not stated in judgment; plaint dated 20th February 2015)· [2016] KEELC 480 (KLR)

Kimolo Boniface Mutuku & another v James Njendu Kamau & another [2016] KEELC 480 (KLR)

High Court of Kenya
6 October 2016
AOA. Omollo
1,634 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to stop a power line re-route because the landowners sued before any actual threat or approved plan existed.

What this practically means

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Executive summary

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The plaintiffs, owners of plots 69, 70 and 72 within plot No. 624 Section I Mainland North, Mombasa, sought an interlocutory injunction by notice of motion dated 20th February 2015 restraining the 1st defendant, James Njendu Kamau, and the 2nd defendant, the power company, from re-routing a three-phase high voltage electricity line so that it would run above their properties. They alleged the 1st defendant was colluding with employees of the 2nd defendant and had received a quotation dated 9th February 2015 for electricity supply that would necessitate re-routing over their land, rendering their houses uninhabitable. The 1st defendant denied bad faith, asserting he had merely sought re-routing of the line from his own parcels along the road reserve, and relied on a pending suit he had filed against the 2nd defendant. The 2nd defendant, through its Wayleaves Officer, deposed that it had obtained a wayleave agreement for the original line, had approved no re-routing application, and that no live quotation existed. Applying the settled principles from Nguruman Ltd v Jan Bonde & 2 others, the court found that ownership was not disputed, no wayleave or plan to route the line over the plaintiffs' plots existed, no real threat to the plaintiffs' occupation was demonstrated, and the applicants came to court prematurely. The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether the applicants proved the Nguruman principles for an interlocutory injunction

Holding

They did not; the application was dismissed

Reasoning

The court found no real threat by either defendant to interfere with the plaintiffs' land. The gist of the claim rested on a quotation letter which expressly stated a design would precede any quotation and that wayleaves approval would be sought; no wayleave application or re-routing plan touching the plaintiffs' plots was produced. The 2nd defendant had approved nothing, no quotation was issued to the 1st defendant, and an existing suit between the defendants precluded removal of the present line. The applicants therefore came to court prematurely.

p. 3
02

Whether an injunction could issue against a party on the basis of anticipated conduct

Holding

No, absent evidence of any real threat or approved plan to re-route the power line over the plaintiffs' land

Reasoning

The court found the defendants had done nothing and approved nothing that threatened the plaintiffs' properties; the 1st defendant sought re-routing without specifying the route, and the 2nd defendant confirmed no application had been approved and no quotation was live.

p. 3

Legal principles established

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  • A party seeking a temporary injunction must demonstrate a prima facie case with a probability of success, or irreparable loss not compensable by damages, or that the balance of convenience favours the grant

Court orders

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  1. 1.The notice of motion seeking an interlocutory injunction is dismissed
  2. 2.Costs of the application awarded to the defendants
Jurisdiction invoked
Original civil jurisdiction of the High Court (suit by plaint); no specific constitutional provision stated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimolo Boniface Mutuku & another v James Njendu Kamau & another [2016] KEELC 480 (KLR)", Case Analysis (2016). MSA HCCC (not stated in judgment; plaint dated 20th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/480/eng@2016-10-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.