Ndindiri v Irimu & 3 others

2. d. Cost of this suit together with interest thereon. e. Any other remedy that this Honorable court may deem t to award The Defendants upon being served ed statement of defence dated February 14, 2022 wherein they denied the Plainti’s claim in its entirety. They averred that they were strangers to the Plainti’s averments in the plaint and that the Plainti was not entitled to the reliefs sought. The Plainti ’s Case. 3. The Plainti averred that sometimes between September 2021, the Defendants who are the ocials of an entity called Eastern Thome Self Help Group Filed A Suit At The Subordinate Court To Wit Cm Elc No E327 Of 2021 Eastern Thome Self Help Group –vs- Monicah Nyakiringa Ndindiri & 4 Others seeking orders to stop the Plainti from continuing with the construction of her town houses among other remedies. The Defendants managed to obtain exparte orders stopping the constructions which orders remained in place until November 17, 2021when the suit before the subordinate court was dismissed in its entirety. 4. It was further averred that during the said period, the project stalled completely as the Plainti was only able to resume construction after the suit at the subordinate court had been dismissed. The Plainti averred that sometimes in November 2021, the project Quantity Surveyor qualied the loss as a result of the stalled project which losses they sought to recover from the Plainti. The Plainti was left with no option but to settle the claim which amounted to Kshs 31,172,537.59. The entire project was valued at Kshs 65,000,000/- 5. During trial, James Mathu Kanyua testied as PW1. He stated that he is a Director of Full Mark Building Kenya Limited who were engaged as the contractors in the Plainti’s project. He told the court that he was contracted by the Plainti to develop the project located at Garden Estate. The works commenced in January 2021 after they had signed a contract dated November 18, 2020. 6. It was his testimony that they proceeded with the project uninterrupted for about 9 months until when the Defendants stopped the project on the account that it had no approvals. After the issue was sorted, they later resumed in January 2022 upon which they still faced some challenges from the Defendants on the account that there was an Enforcement Notice issued by Nairobi City County. The Enforcement Notice was later vacated. The project had been suspended for a period of 67 days which occasioned losses to the Plainti and the contractors together with the third parties who had been engaged by the contractors. He also testied that the contract could not be terminated because the project was yet to be completed. He stated that a loss of Kshs 31,172,537.59 had been quantied by the quantity surveyor for the entire period of 67 days that the construction of project had been suspended. 7. Benson Oire Onduso the project quantity surveyor testied as PW2. He stated that he did le a statement dated January 24, 2022 which he adopted as his evidence in chief. 8. Rose Wanjiru Ndindiri testied as PW3. He stated that she was acting on behalf of the Plainti and she produced a power of attorney dated October 25, 2016which had been registered on October 27, 2016. She also adopted her witness statement dated January 24, 2022as her evidence in chief and urged the court to grant the prayers sought in the plaint dated24Th January 2022. The Defendants case. 9. The Defendant’s save for ling a statement of defence dated February 14, 2022 and despite being served never participated in the trial nor did they call any witness to testify on their behalf. The court closed https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18438/eng@2023-06-29 2

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the Defendants case without them calling any witnesses as they had been granted an opportunity to do so but failed to utilize the same. The Plainti ’s submissions. 10. The Plainti led written submissions dated April 14, 2023. The Plainti began her submissions by giving a brief background of the dispute and submitted that the Plainti had proved her case and was entitled to the prayers sought. 11. In respect to the prayers sought, it was submitted that the Plainti was entitled to prayers of permanent injunction because the Defendants have been unfairly and without any reason interfering with the Plainti’s project by denying the Plainti’s employees/servants and contractor from accessing her property in order for her to develop the same without any justiable cause or reason under the law and hence therefore the prayer was necessary. Reliance was placed to the case of Kasarani Mall Ltd v Daniel Otieno Miganga & 3 others (2017) eKLR. 12. In respect to compensation for the losses incurred between September 11, 2021to November 17, 2021, it was submitted that James Mathu Kanyua who testied as PW1, a director of Full Mark Building & Engineering (K)Limited had testied and produced evidence where he was denied access to the site under the instructions of the Plainti. It was also submitted that as a standard practice any losses incurred during any construction that is not in any way the contractor’s fault shall be assumed by the developer and in the instant case, the quantity surveyor in charge of the project had quantied the same being Kshs 31,172, 537.59. 13. The Plainti also submitted that the evidence of Benson Onduso Oire PW2 who testied as the Project quantity surveyor had clearly demonstrated the losses incurred amounting to Kshs 31,172,537.59 which had been produced in the Plainti’s bundle of documents. Reliance was placed in the case of Rhoda S. Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited (2019) eKLR. 14. It was also submitted that this court has powers to issue orders relating to damages and compensation as stipulated under section 13 (7) (c) and (d) of the Environment and Land Court Act 2012. The Defendants submissions. 15. The defendants despite serve never led any written submissions in respect to these proceedings despite being granted an opportunity to do so. However this court is still bound to consider the entire pleadings and evidence adduced in rendering its judgment. Analysis and Determination. 16. The court has considered the pleadings led, written submissions led by the Plainti and the oral and documentary evidence tendered by the witnesses and is of the view that the following are the main issues for consideration herein. i. Whether the Plainti has proved her case to the required standard. ii. Whether the Plainti is entitled to the orders sought. Issue No. 1 Whether Plainti has proved her case. 17. During trial, the Plainti led evidence that she is the registered proprietor of L.R. No. Nairobi Block 110/425 located at Garden Estate which had a project whose construction was suspended due to https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18438/eng@2023-06-29 3

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reasons occasioned by the Defendants. The Plainti also produced evidence to the eect that as a result of the suspension of the said project for 67 days from September 11, 2021to November 17, 2021she incurred huge losses which was quantied as Kshs 31,172,537.59. The Plainti was also tendered evidence to the eect that the defendants without any colour of right and or reason had occasioned the suspension of the said project and hence liable for the losses incurred. 18. The Defendants never called any witness to testify on their behalf. No witness was called on behalf of the Defendants to controvert the averments and or testimony adduced by the Plainti. Therefore, the Defendants’ defence remains mere allegations as the Plainti’s testimony was never rebutted. See the case of Bilsah Matiangi v Kisii Bottlers Limited & another (2021) eKLR. “ where a Plainti gives evidence in support of her case, but the Defendant fails to call any witness in support of its allegations then the Plainti’s evidence is uncontroverted and the statement of defence remains mere allegations.” 19. However, uncontroverted evidence is not automatic evidence and the Plainti still has an obligation to prove her case to the required standard. In the case of Kirugi and another v Kabiya & 3 others (1987) KLR 347 the Court of Appeal held that: “ The burden was always on the Plainti to prove his case on a balance of probabilities even if the case was heard as formal proof. Likewise, failure by the Defendant to contest the case does not absolve a Plainti of the duty to prove the case to the required standard.” Similarly, in the case of Gichinga Kibutha v Caroline Nduku (2018) eKLR the court held that: “ It is not automatic that instances where the evidence is not controverted the claimants has his way in court. He must discharge the burden of proof. He must proof his case, however much the opponent has not made a presence in the contest.” 20. In the instant case, it is not disputed that the Plainti is the registered owner of L.R. No. Nairobi Block 110/425. It is also not disputed that the Plainti’s project was stopped without any justiable reason by the Defendant upon which she suered losses amounting to Kshs 31,172,537.59. 21. Therefore, this court nds that no cogent explanation has been oered by the Defendants for their actions and as such the Plainti has proved her case against the Defendants to the required standard. Issue No. 2 Whether the Plainti is entitled to the prayer’s sought in her plaint. 22. The Plainti prayed for orders of permanent injunction and compensation for the losses incurred as a result of suspension of the project between September 11, 2021 to November 17, 2021. 23. The evidence adduced by the Plainti shows that the Defendants through their servants and agents have previously blocked her contractor from accessing her property and undertaking her project. These actions have resulted to the construction of the project being halted, consequences of which losses have been incurred. This therefore shows that the Plainti is entitled to the order of permanent injunction against the actions of the Defendants. 24. In respect to the orders sought for compensation, the Plainti’s witnesses were able to adduce sucient evidence of the losses suered by the Plainti as a result of the Defendants actions. The said loss was quantied for Kshs 31,172,537.59. In the absence of any controverting evidence, this court is satised that the Plainti has proved her case to the required standard. The court sits to administer https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18438/eng@2023-06-29 4

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justice. Equity always protects the just rights of the oppressed. Equity always prevents an injustice being perpetrated. Equity sancties the administration of justice. In the circumstances I see no basis of not granting the reliefs sought. 25. On the issue of costs, section 27 of the Civil Procedure Act gives the discretion to the court and considering that the Defendant did not participate in the trial herein, I will direct each party to bear own costs of the suit. Final orders 26. 27 In conclusion, it is clear that the Plainti has proved her case on a balance of probabilities. I hereby make the following orders, I enter Judgment for the Plainti against the Defendants as follows: a. A permanent injunction is hereby issued against the Defendants, whether by themselves, their agents, servants and or employees from interfering with an or denying the Plainti’s contractors, employees and or servants’ access to the construction site on plot L.R. No. 110/425 located at Garden Estate. b. Payment of Kshs 31,172,537.59 to the Plainti by the Defendants in respect to compensation for losses incurred as a result of suspension of the project for the period of September 11, 2021to September 17, 2021. c. Each party to bear own costs of the suit. Judgment accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH JUNE 2023. E.K WABWOTO JUDGE In the presence of:Mr. Majimbo for Plainti. No appearance for Defendants. Court Assistant – Caroline Nafuna. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18438/eng@2023-06-29 5

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