Abdi Sheikh Idriss v The County Governmentof Garissa & 2 others

christened LG/MWD/20/22 and occupies house Number MG 22. It is his position that the 1 st Respondent is the agent of the 2 nd Respondent for purposes of rent collection and onward transmission. And that as it stands the 1 st Respondent has an outstanding debt of Kshs. 1,795,653.40/= in respect of the subject Housing scheme LG/MWD/20/22. 5. It is his case that pursuant to the above outstanding debt, the 2 nd Respondent reserves the right to sue and recover the outstanding amount pursuant to section 6(2) of the Housing Act CAP 117 and as such the 1st Respondent has no authority to demolish the said houses. 6. It is the Petitioners Applicant contention that the 1 st Respondent has issued an eviction notice in the guise of renovating the premises, yet the real intention is to construct a market place and the Deputy Governor Residence. This they contend is contrary to section 11(b) of the Housing Act which mandates the 1st Respondent to sell or let but not demolish existing rental houses. 7. The petitioner alleges that the intended demolition contravenes Article 40 of the Constitution and Article 25 of the Universal declaration of Human Rights. 8. In sum, he urges this court to grant the sought interim reliefs stopping the demolition as the tenants will suffer irreparable loss and damage, arguing that the balance of convenience lies in their favours as tenants. 2nd Respondents Case 9. In opposition to the Petitioners Application, the 2 nd Respondent averred that it is a statutory body established under section 3 of the Housing Act with the mandate to provide various housing needs to Kenyans. 10. In respect to the subject property, they averred that pursuant to section 7(1)( c) of the Housing Act it developed a rental housing scheme composed of 28 houses for the defunct County Council of Garissa succeeded by the 1 st respondent. And that the costs were passed to the 1 st Respondent as a loan facility with specific repayment term. 11. It is their case that the 1 st Respondent has since cleared the loan facility and has been cleared by the 2 nd Respondent pursuant to section 16 of the Housing Act, and that it no longer has any interest in the subject property as its ownership is in the hand of the 1 st respondent, arguing that the applicant has no case against the 2 nd Respondent urging the court to dismiss the application with costs. Submissions 12. Vide their written submissions, the 2nd Respondent reiterated the above stating that the 1 st Respondent does not need the approval of the 2nd Respondent to either demolish or evict tenants from the rental scheme. 13. The 2nd Respondent in regard to the application submitted that the same does not meet the conditions set in the case of Giella –vCassman Brown (1973)EA 358, being that an applicant has to established a prima facie case, whether damages are adequate remedy and balance of convenience. They went ahead and submitted on the three conditions. 14. On the first issue of Prima Facie case, the 2 nd respondent submitted that the applicant has failed to establish a prima facie case, arguing that no right of the applicant has been infringed as was held in Mrao Ltd vs First American Bank of Kenya and 2 Others (2003)KLR 125, it is their argument that the case against the 2 nd Respondent has no basis as it no longer has control of the subject property after the 1 st respondent cleared their facility and therefore it is at liberty to do what it deems fit with the subject property. 15. In respect to damages the 2 nd respondent submitted that the loss that can be occasioned to the Petitioners can be recovered through the award of damages if the sought injunctions are denied by this court. They submitted that both the 1 st and the 2nd Respondent are in a position to compensate the petitioners in case of losses. In this regard they rely in the Court of Appeal cases of Vivo Energy Kenya Limited vs Maloba Petrol Station Limited & 3 Others (2015) eKlr and Amritlal vs City Council of Nairobi, Civil Appeal No. 47 of 1981. 16. On balance of convenience the 2 nd Respondent submitted the same lies in favour of dismissing the application as it is a waste of judicial time and public resources. Issues and Determination 17. I have considered the application, the affidavit in support and against, the grounds of opposition and the 2 nd Respondent submissions. I have also considered the cited authorities. The principles to be applied when considering an application for temporary injunctions are well settled. In the above cited case of Giella –v- Cassman Brown (1973)EA 358, the conditions were laid and that is: “First the applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. And thirdly, if the court is in doubt, it will decide an application on a balance of convenience. ” 18. Further, in Mrao Ltd vs. First American Bank of Kenya Limited and 2 others (2003) KLR 125, the Court of Appeal defined a prima face case as follows:

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“a prima facie case in a Civil Application includes but is not confined to a genuine and arguable case. It is a case which, on the material presented to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 19. In this case the applicant is alleging that his right to property protected under Article 40 of the Constitution is likely to be infringed by the 1st Respondent who intends to demolish the subject houses where he is a tenant. He alleges that the 1 st Respondent still owes the 2 nd Respondent the money advanced for the construction of the subject property. The 2 nd Respondent denied the same stating that the 1 st Respondent has since cleared the debt and is free to do whatever it wishes with the property. 20. At this stage the court ought not to make conclusive findings, however it has duty to determine whether the applicant has established a prima facie case. The applicable case in the circumstances is the Mrao Ltd vs. First American Bank of Kenya Limited and 2 others (supra) since the applicant is alleging an infringement of his fundamental right to property. 21. It is his contention that the 1 st Respondent action is contrary to section 11(b) of the Housing Act which mandates the 1 st Respondent to sell or let but not demolish existing rental houses. The 1 st Respondent has not entered appearance to oppose the instant application, only the 2nd Respondent has filed response and submissions in opposition to the application. 22. From the material on record, I find that the applicant has established a prima facie case against the 1 st Respondent, Secondly, the applicant has demonstrated that they stand to suffer irreparable harm not compensable in damages as the intended eviction and demolition affects his home. Additionally, the balance of convenience tilts in favour of the applicant as he stands to suffer if this court was upon conclusion of this suit is to find in his favour. Decision 23. The upshot is that the Notice of Motion dated 12th June, 2019 is merited. The same is hereby allowed with no orders as to costs. Read, delivered and signed in the Open Court this 30th day of January, 2020. ................................... E. C Cherono (Mr.) ELC JUDGE In the presence of: 1. Mr. Musyoka Bobo for the 2nd Respondent. 2. Mr. Nura for the 1st Respondent. 3. Fardowsa: Court Assistant present.

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