Gitau v Savage & 4 others (2002) eKLR

Key Facts

Issues

• Whether the High Court judge properly exercised his discretionary jurisdiction in granting the temporary injunction to preserve the status quo pending the suit's final determination.
• Whether the development of a petrol station and commercial subdivision on LR No 7413/5 violated the Land Planning Act and Development and Use of Land (Planning) Regulations 1961, which require development consent for zoned areas.
• Whether the injunction orders issued by the superior court were overly restrictive, as claimed by the appellant, and if they unfairly prejudiced the appellant's rights to develop the property.
• Whether the court correctly applied the principles for granting injunctions (prima facie case, adequacy of damages, and balance of convenience) to restrain unauthorized commercial development on land zoned for residential use.

Holdings

• The court outlined the principles for granting an injunction, referencing Giella v Cassman Brown & Co Ltd [1973] EA 358, which require the applicant to demonstrate a prima facie case, show that damages would be inadequate, and consider the balance of convenience if there is doubt on either of the first two principles.
• The High Court judge's decision to grant a temporary injunction was upheld, as it was deemed necessary to maintain the status quo pending the suit's final determination. The appeal was dismissed with costs to the respondents, and the City Council of Nairobi was ordered to bear its own costs.

Remedies

• The court granted a temporary injunction to restrain unauthorized development on land designated as residential for commercial purposes, preserving the status quo until the suit's final determination.
• The Court of Appeal dismissed the interlocutory appeal, affirming the superior court's decision to grant the temporary injunction. The respondents were awarded costs of the application, with the City Council of Nairobi bearing its own costs.
• The respondents were awarded the costs associated with the injunction application, while the City Council of Nairobi was directed to bear its own costs in the proceedings.

Legal Principles

Precedent Name

Cited Statute

• Development and Use of Land (Planning) Regulations 1961
• Land Planning Act, Chapter 303 of the Laws of Kenya
• Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 1, 2, 3, 7

Judge Name

• O'Kubasu
• Tunoi
• Keiwua

Passage Text

• The principles which guide the court in dealing with an application for an injunction are well settled and clearly spelt out in the case of Giella v Cassman Brown & Co Ltd [1973] EA 358. The applicant must first show he has a prima facie case with the probability of success upon trial. Secondly, he must show that in the event that he is refused an injunction and he were eventually to succeed that damages would not adequately compensate him for any loss which he would have suffered. Thirdly, that if the court is in doubt on either of the two principles above then it should consider the application on the balance of convenience.
• I find that the plaintiffs have established a prima facie case. The proposed construction is of a permanent nature and the suit will be of no consequence if the plaintiffs are denied the orders at this stage. I do not see any prejudice to the first defendant by the granting of the order. Furthermore damages cannot be adequate remedy to the plaintiffs in a case of this nature. What they seek to prevent transcends monetary valuation. The balance of convenience tilts in favour of granting the order.
• We are satisfied that a temporary injunction was properly granted in order to maintain status quo until the final determination of the suit. We find no merit in this appeal and we order that the same be and is hereby dismissed with costs to the respondents.