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ELCDismissedELC Case of 2015 (Notice of Motion dated 15th September 2015)· [2017] KEELC 3464 (KLR)

Muthithi Investments Limited v Nairobi City Water & Sewerage Company Ltd [2017] KEELC 3464 (KLR)

Environment and Land Court
24 February 2017
KBK. BOR
1,253 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to force Nairobi Water to disconnect pipelines from private land because other residents depend on those services.

What this practically means

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Executive summary

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The plaintiff, Muthithi Investments Limited, owner of land parcel No. 23917, Nairobi, moved the court by Notice of Motion under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking an injunction to restrain Nairobi City Water & Sewerage Company from supplying or further connecting water and sewerage services to the suit property, and a mandatory order compelling the defendant to remove its pipelines and apparatus. The plaintiff asserted that the defendant had unlawfully laid pipes and connected squatters occupying the land, despite a judgment and decree in ELC 457 of 2013 (formerly ELC/HCCC No. 498 of 2004) ordering Andrew S. Kyendo and 22 others to vacate. The defendant, a wholly owned subsidiary of Nairobi City County, countered that it was not a party to the eviction suit, had binding supply contracts with third parties, and that disconnection would expose it to penalties and disrupt services to non-parties. The defendant filed no replying affidavit. The court framed two issues: whether to restrain supply or connection of services, and whether to compel removal of pipelines. Applying the principles on mandatory injunctions, the court held that such injunctions are rarely granted at the interlocutory stage absent special circumstances, and that third-party consumers who are not parties to the suit would be adversely affected. The application was dismissed, the suit ordered to proceed to full hearing upon compliance with Order 11, with each party bearing its own costs.

Key legal issues

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01

Whether an interlocutory mandatory injunction should issue to restrain the water company and compel removal of pipelines

Holding

The application was declined; the balance of convenience and the rights of third-party consumers outweighed the plaintiff's claim at the interlocutory stage.

Reasoning

The court noted the pipelines were laid before the eviction orders in ELC 498 of 2004, that the defendant had binding contractual obligations to consumers who are not parties to the suit, and that disconnection would expose the defendant to breach. There was no evidence that only squatters would be affected. Mandatory injunctions are granted only in clear cases or special circumstances, and courts are reluctant to grant them interlocutorily.

p. 2

Legal principles established

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  • A mandatory injunction will not normally be granted at the interlocutory stage in the absence of special circumstances.
  • In considering an injunction against a public utility, the court must consider the effect of the order on persons who are not parties to the suit.

Court orders

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  1. 1.The court declines to grant the orders sought in the motion dated 15th September 2015
  2. 2.The suit to proceed for full hearing after the parties comply with Order 11 of the Civil Procedure Rules
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A & 63
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3, 4, 5 & 8
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Muthithi Investments Limited v Andrew S. Kyendo and 22 others
    ELC No. 498 of 2004 (formerly HCCC No. 498 of 2004); decree in ELC No. 457 of 2013
Jurisdiction invoked
Sections 1A, 1B, 3A & 63 of the Civil Procedure Act and Order 40 Rules 1, 2, 3, 4, 5 & 8 of the Civil Procedure Rules

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, "Muthithi Investments Limited v Nairobi City Water & Sewerage Company Ltd [2017] KEELC 3464 (KLR)", Case Analysis (2017). ELC Case of 2015 (Notice of Motion dated 15th September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3464/eng@2017-02-24

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