BRIEF FACTS
The Plaintiff/Applicant filed the instant application dated 1st March, 2025 seeking the following orders:
1. Spent.
2. Spent.
3. THAT pending the hearing and determination of this suit, a conservatory order does (sic) issue staying or restraining the defendant/respondent, his agents and or servants from carrying on any construction activities on the land known as NAKURU MUNICIPALITY/BLOCK 21/955 or in any way using the property in a manner that interferes with the Applicant’s quiet possession and enjoyment of his property to wit NAKURU MUNICIPALITY/BLOCK 21/956 and secondly that pending the hearing and determination of this suit, a restraining order be issued restraining the respondent and/or his servants from letting out, allowing occupation of the said storey building as this has damaging effect on the applicant’s premises.
4. Spent.
5. THAT this Honourable Court be pleased to issue such further or other orders(s) as it may deem just and expedient for the ends of justice.
6. THAT the costs of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of PETER OTIENO PETE the Plaintiff/Applicant herein sworn on 1st March, 2025. He stated that he was the owner of Nakuru Mun/Block 21/956 which he had put up 14 bedsitter units. He further stated that the Respondent was the owner of Nakuru Mun/Block 21/955 and was constructing a six storey flat. He further stated that the Respondent negligently caused to be excavated a huge trench adjoining the Applicant’s structure thus removing the supporting earth under the foundation of the Applicant’s building. He also stated that the Respondent has since trespassed onto his land and erected round (scaffolding) poles directly on top of the Applicant’s roof thereby exerting pressure onto the already shaky foundation and poking holes on the iron sheet roof. He went on to state that the supporting walls to his building has since been damaged by the construction activities on the Respondent’s building. He added that the building stones and wooden planks kept on falling inside his compound and the roof of his building thus becoming a constant nuisance and danger to the residents. He also stated that the construction activity has resulted in serious leakage of his roofs during the rainy season and loss of his tenants within the three months. He stated that the Respondent has failed to compensate him despite his attempt to make good of the damage. He stated that unless the Respondent was restrained he would continue with the said trespass to his detriment.
Response
The Respondent filed his Replying Affidavit sworn on 20th March, 2025 where he averred that he was the registered proprietor of the suit land where he has since erected a six-storey building. He averred that he had obtained all the necessary permits and licenses and that all the masonry and exterior works had been concluded with only minor interior works pending. He further averred that the conservatory orders being sought have since been overtaken by events as the building had already been completed before the present application was filed. He also averred that the dispute did not relate to ownership of his property but a tortious claim. He averred that he had constructed the building for purposes of renting it out which some of had already been occupied by tenants. He also averred that the Applicant failed to prove how letting out his building would inconvenience him. He further averred that the Applicant failed to prove the alleged holes on the roof of his premises. He averred that the Applicant’s structure has been in existence since 2018 and weathered over time. He averred that he only agreed to compensate the Applicant out of good faith when he complained that there was noise pollution. He added that the Applicant wishes to unjustly enrich himself my filing of the present suit yet there are no debris or building materials next to his wall as the building was already complete. He averred that he never trespassed onto the Applicant’s property since the windows that faced the Applicant’s plot were permanently welded and could not be opened. He urged the court to dismiss the application with costs.
The Applicant filed a supplementary affidavit sworn on 1st April, 2025 where he produced a report on the structural failure from the National Construction Authority dated 26th March, 2025.
The Respondent in response filed a further affidavit sworn on 7th April, 2025 where he reiterated the contents of his earlier replying affidavit and added that the NCA report by the Applicant was filed without the court’s leave and that it was not marked and commissioned as provided under Rule 9 of the Oaths and Statutory Declarations Rules. He added that on 19th February, 2023 he had applied for the NCA permit prior to commencement of the construction. He stated that the credibility of the report was disputed and urged the court to have the same expunged from record.
Submissions
Counsel for the Applicant filed his submissions dated 1st April, 2025 where he identified one issue for determination being whether an application for temporary injunction ought to be granted. He cited the case in Giella V Cassman Brown and Another [1973] E.A 358 and submits on the three principles to be met before grant of the injunction. On the first principle of whether a prima facie case with probability of success had been proved, he submits in the affirmative and relied on the case of Mrao Ltd V First American Bank of Kenya Ltd & 2 Others [2003] eKLR. It was his submission that the two parcels share a common boundary and the Respondent’s construction of his building did not leave any space for windows which were open right inside the Applicant’s property. He submits that the illegally constructed structure posed an immense danger on the Applicant’s abutting property which would result into damage and even loss of lives to many residents.
The second and third principle was whether damages would be an adequate compensation and the balance of convenience. Counsel for the Applicant submits that the danger the Respondent’s building posed on his property including the lives of his tenants could not be remedied by payment of damages. He added that the balance of convenience tilted towards award of the temporary injunction. He relied on Article 26 and 40 of the Constitution. He urged the court to allow the application as prayed.
Counsel for the Respondent on the other hand filed his submissions dated 7th April, 2025 where he identified three issues for determination. The first issue was whether the Applicant’s Supplementary Affidavit sworn and filed on 1st April 2025 without leave should be expunged from the Record. He relied on Order 51, Rule 14(3) of the Civil Procedure Rules and submits that the Supplementary Affidavit introduced extraneous issues that were not raised in the Supporting Affidavit. It was his submission that the Respondent was at a point of disadvantage to these new issues being introduced as he could not summon the author of the irregularly annexed report for cross examination or even file an affidavit to counter the contents of that supplementary affidavit. He relied on the case of Neptune Credit Management Limited v Hiten Kumar Raja (Commercial Case E412 of 2022) [2024] KEHC 68 (KLR). He further submits that the impugned Report annexed to the Supplementary Affidavit was not marked and commissioned by a Commissioner for Oaths and the same should be struck off the record. He cited that case of Francis A. Mbalanya Versus Cecilia N. Waema ELC. Case No. 21 Of 2016 eKLR. He argues that the timing of the irregularly annexed document was suspect and an afterthought intended to steal a match. He added that should the court be inclined to admit the Supplementary Affidavit, it would only fair that the Respondents Further Affidavit sworn and filed on 7th April 2025 is also admitted on record.
The second issue was whether the Conservatory Order being sought by the Plaintiff/Applicant stopping the construction on the Respondent’s property should be granted. He relied on the case of Judicial Service Commission V Speaker of the National Assembly & Another (2013) eKLR and Board of Management of Uhuru Secondary School V City County Director of Education & 2 Others (2015) eKLR. It was his submission that the Applicant has not established a prima facie case to warrant the grant of a conservatory order as the instant prayer has been overtaken by events since the construction of the Respondent’s six-storey building was already completed in November 2024. He submits that the from the photographic evidence placed before this court, it was undeniable that the Respondent’s six-storey building was completed by 7th November 2024. He submits that the Applicant has not tendered any evidence to create a nexus between the Respondent’s concluded construction activities and the alleged cracks or damages on the Applicant’s property.
He argues that the Applicant has therefore not illustrated how he will be prejudiced by a complete building and whether there exists a right which is under threat of violation or which is being violated or the presence of a high likelihood that he will succeed in the trial of the main suit. It was his submission that the Applicant has failed to prove how the suit will be rendered nugatory if the conservatory order is not allowed and thus argues that no prejudice will be suffered as the order sought does not remedy any wrong or protect any right. He also submits that the Applicant failed to demonstrate how the public would suffer peril from a complete building if the order sought is not granted. He cited the case of Darad Limited & Another V Kenya Power & Lighting Co Ltd [2002] eKLR
The final issue was whether the Court should grant a Temporary Injunction restraining the Respondent and or his servants, agents from letting out or allowing occupation of his building. Counsel relied on the case of Yejoka Garden Restaurant Limited V Staroot Residency ELC No. E190 of 2022 (KLR) and submits that based on the material presented, the Applicant has not established nor demonstrated the existence of a prima facie case with probability of success. He argues that the Applicant failed to demonstrate that he shall be disposed to suffer irreparable loss. It was counsel’s submission that the loss, if any was that the Applicant shall be disposed to suffer is quantifiable, reparable and compensable in monetary terms. He relied on the case of Mathii Siku V Muitungú Mwai Wanjohi ELC CASE NO E033 OF 2023 eKLR. In conclusion, he submits that since the hearing of the main suit was yet to commence, the granting of the orders sought at this stage would infer that the court has drawn conclusions on the matter. He urged the court to dismiss the application with costs.
Analysis and Determination
This court has considered the application and supporting affidavit and is of the view that the main issue for determination whether the Applicant is entitled to the conservatory orders sought. The Applicant has applied for conservatory orders restraining the Respondent from trespassing and or constructing a six-storey building adjacent to the Applicant’s property. The Applicant claims that the construction of the building by the Respondent has since resulted in damages on his property by virtue of the shared wall between the two properties. He annexed a report from the National Construction Authority (NCA) alleging structural failure on the Respondent’s storey building.
The Respondent on the other hand contends that the construction of the building on his suit property was finalized on 7th November, 2024 before the present application was filed and therefore the claim has since been overtaken by events. He also annexed approvals and licenses from NCA and NEMA.
It is not in dispute that the Applicant is the registered proprietor of the parcel of land known as NAKURU/MUNICIPALITY/BLOCK 21/956 while the Respondent is the registered proprietor of NAKURU/MUNICIPALITY/BLOCK 21/955 which properties are adjoining. It is noteworthy that the dispute between the parties regards whether or not the Respondent’s construction project has encroached onto the Applicant’s land.
The principles to be satisfied in granting of a conservatory order was expressed by Justice Onguto J. (as he then was) in the case of Board of Management of Uhuru Secondary School V City County Director of Education & 2 Others [2015] eKLR as follows:
“In summary, the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. Further, the Court should decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether to grant or deny a conservatory order.”
It is this court’s view that the principles required to be satisfied before granting conservatory orders or interim conservatory orders comprises of the following: -
a) First, an Applicant must demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he/she is likely to suffer prejudice.
b) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.
c) Thirdly, the court should consider whether, if an interim conservatory order is not granted, the substratum of the matter will be rendered nugatory.
d) The final principle for consideration is whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.
Section 107 of the Evidence Act provides as follows:
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
In the instant case, it is this court’s view that the first requirement on a prima facie case ought to be established by the Applicant. It is a fact that both parties annexed photographs of their properties showing the extent of construction and its alleged effect. It is my opinion that it was incumbent upon the Applicant to demonstrate that he has shown at prima facie level that the Respondent’s actions of construction have violated or threatened to violate his right. This court has considered the annexures photographs produced by the Applicant and the same only show cracks on a property and nothing more. The cracks do not confirm it was from which building. In addition, the NCA report in the Applicant’s supplementary affidavit was filed without the court’s leave and therefore this court shall not consider it. It shall also fail to consider the Respondent’s further affidavit as the same was filed without leave of this court.
Having considered the evidence on record, it is this court’s view that the Applicant has not placed any material before this court to demonstrate the nexus between the alleged damage on his property with that of the Respondent’s alleged construction. In the premises, this court is not satisfied that the Applicant has demonstrated a case with merit to deserve grant of conservatory orders. The upshot is that the application dated 1st March, 2025 lacks merit and the same is hereby dismissed with costs to the Respondent. It is so ordered.
The Plaintiff/Applicant filed the instant application dated 1st March, 2025 seeking the following orders:
1. Spent.
2. Spent.
3. THAT pending the hearing and determination of this suit, a conservatory order does (sic) issue staying or restraining the defendant/respondent, his agents and or servants from carrying on any construction activities on the land known as NAKURU MUNICIPALITY/BLOCK 21/955 or in any way using the property in a manner that interferes with the Applicant’s quiet possession and enjoyment of his property to wit NAKURU MUNICIPALITY/BLOCK 21/956 and secondly that pending the hearing and determination of this suit, a restraining order be issued restraining the respondent and/or his servants from letting out, allowing occupation of the said storey building as this has damaging effect on the applicant’s premises.
4. Spent.
5. THAT this Honourable Court be pleased to issue such further or other orders(s) as it may deem just and expedient for the ends of justice.
6. THAT the costs of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of PETER OTIENO PETE the Plaintiff/Applicant herein sworn on 1st March, 2025. He stated that he was the owner of Nakuru Mun/Block 21/956 which he had put up 14 bedsitter units. He further stated that the Respondent was the owner of Nakuru Mun/Block 21/955 and was constructing a six storey flat. He further stated that the Respondent negligently caused to be excavated a huge trench adjoining the Applicant’s structure thus removing the supporting earth under the foundation of the Applicant’s building. He also stated that the Respondent has since trespassed onto his land and erected round (scaffolding) poles directly on top of the Applicant’s roof thereby exerting pressure onto the already shaky foundation and poking holes on the iron sheet roof. He went on to state that the supporting walls to his building has since been damaged by the construction activities on the Respondent’s building. He added that the building stones and wooden planks kept on falling inside his compound and the roof of his building thus becoming a constant nuisance and danger to the residents. He also stated that the construction activity has resulted in serious leakage of his roofs during the rainy season and loss of his tenants within the three months. He stated that the Respondent has failed to compensate him despite his attempt to make good of the damage. He stated that unless the Respondent was restrained he would continue with the said trespass to his detriment.
Response
The Respondent filed his Replying Affidavit sworn on 20th March, 2025 where he averred that he was the registered proprietor of the suit land where he has since erected a six-storey building. He averred that he had obtained all the necessary permits and licenses and that all the masonry and exterior works had been concluded with only minor interior works pending. He further averred that the conservatory orders being sought have since been overtaken by events as the building had already been completed before the present application was filed. He also averred that the dispute did not relate to ownership of his property but a tortious claim. He averred that he had constructed the building for purposes of renting it out which some of had already been occupied by tenants. He also averred that the Applicant failed to prove how letting out his building would inconvenience him. He further averred that the Applicant failed to prove the alleged holes on the roof of his premises. He averred that the Applicant’s structure has been in existence since 2018 and weathered over time. He averred that he only agreed to compensate the Applicant out of good faith when he complained that there was noise pollution. He added that the Applicant wishes to unjustly enrich himself my filing of the present suit yet there are no debris or building materials next to his wall as the building was already complete. He averred that he never trespassed onto the Applicant’s property since the windows that faced the Applicant’s plot were permanently welded and could not be opened. He urged the court to dismiss the application with costs.
The Applicant filed a supplementary affidavit sworn on 1st April, 2025 where he produced a report on the structural failure from the National Construction Authority dated 26th March, 2025.
The Respondent in response filed a further affidavit sworn on 7th April, 2025 where he reiterated the contents of his earlier replying affidavit and added that the NCA report by the Applicant was filed without the court’s leave and that it was not marked and commissioned as provided under Rule 9 of the Oaths and Statutory Declarations Rules. He added that on 19th February, 2023 he had applied for the NCA permit prior to commencement of the construction. He stated that the credibility of the report was disputed and urged the court to have the same expunged from record.
Submissions
Counsel for the Applicant filed his submissions dated 1st April, 2025 where he identified one issue for determination being whether an application for temporary injunction ought to be granted. He cited the case in Giella V Cassman Brown and Another [1973] E.A 358 and submits on the three principles to be met before grant of the injunction. On the first principle of whether a prima facie case with probability of success had been proved, he submits in the affirmative and relied on the case of Mrao Ltd V First American Bank of Kenya Ltd & 2 Others [2003] eKLR. It was his submission that the two parcels share a common boundary and the Respondent’s construction of his building did not leave any space for windows which were open right inside the Applicant’s property. He submits that the illegally constructed structure posed an immense danger on the Applicant’s abutting property which would result into damage and even loss of lives to many residents.
The second and third principle was whether damages would be an adequate compensation and the balance of convenience. Counsel for the Applicant submits that the danger the Respondent’s building posed on his property including the lives of his tenants could not be remedied by payment of damages. He added that the balance of convenience tilted towards award of the temporary injunction. He relied on Article 26 and 40 of the Constitution. He urged the court to allow the application as prayed.
Counsel for the Respondent on the other hand filed his submissions dated 7th April, 2025 where he identified three issues for determination. The first issue was whether the Applicant’s Supplementary Affidavit sworn and filed on 1st April 2025 without leave should be expunged from the Record. He relied on Order 51, Rule 14(3) of the Civil Procedure Rules and submits that the Supplementary Affidavit introduced extraneous issues that were not raised in the Supporting Affidavit. It was his submission that the Respondent was at a point of disadvantage to these new issues being introduced as he could not summon the author of the irregularly annexed report for cross examination or even file an affidavit to counter the contents of that supplementary affidavit. He relied on the case of Neptune Credit Management Limited v Hiten Kumar Raja (Commercial Case E412 of 2022) [2024] KEHC 68 (KLR). He further submits that the impugned Report annexed to the Supplementary Affidavit was not marked and commissioned by a Commissioner for Oaths and the same should be struck off the record. He cited that case of Francis A. Mbalanya Versus Cecilia N. Waema ELC. Case No. 21 Of 2016 eKLR. He argues that the timing of the irregularly annexed document was suspect and an afterthought intended to steal a match. He added that should the court be inclined to admit the Supplementary Affidavit, it would only fair that the Respondents Further Affidavit sworn and filed on 7th April 2025 is also admitted on record.
The second issue was whether the Conservatory Order being sought by the Plaintiff/Applicant stopping the construction on the Respondent’s property should be granted. He relied on the case of Judicial Service Commission V Speaker of the National Assembly & Another (2013) eKLR and Board of Management of Uhuru Secondary School V City County Director of Education & 2 Others (2015) eKLR. It was his submission that the Applicant has not established a prima facie case to warrant the grant of a conservatory order as the instant prayer has been overtaken by events since the construction of the Respondent’s six-storey building was already completed in November 2024. He submits that the from the photographic evidence placed before this court, it was undeniable that the Respondent’s six-storey building was completed by 7th November 2024. He submits that the Applicant has not tendered any evidence to create a nexus between the Respondent’s concluded construction activities and the alleged cracks or damages on the Applicant’s property.
He argues that the Applicant has therefore not illustrated how he will be prejudiced by a complete building and whether there exists a right which is under threat of violation or which is being violated or the presence of a high likelihood that he will succeed in the trial of the main suit. It was his submission that the Applicant has failed to prove how the suit will be rendered nugatory if the conservatory order is not allowed and thus argues that no prejudice will be suffered as the order sought does not remedy any wrong or protect any right. He also submits that the Applicant failed to demonstrate how the public would suffer peril from a complete building if the order sought is not granted. He cited the case of Darad Limited & Another V Kenya Power & Lighting Co Ltd [2002] eKLR
The final issue was whether the Court should grant a Temporary Injunction restraining the Respondent and or his servants, agents from letting out or allowing occupation of his building. Counsel relied on the case of Yejoka Garden Restaurant Limited V Staroot Residency ELC No. E190 of 2022 (KLR) and submits that based on the material presented, the Applicant has not established nor demonstrated the existence of a prima facie case with probability of success. He argues that the Applicant failed to demonstrate that he shall be disposed to suffer irreparable loss. It was counsel’s submission that the loss, if any was that the Applicant shall be disposed to suffer is quantifiable, reparable and compensable in monetary terms. He relied on the case of Mathii Siku V Muitungú Mwai Wanjohi ELC CASE NO E033 OF 2023 eKLR. In conclusion, he submits that since the hearing of the main suit was yet to commence, the granting of the orders sought at this stage would infer that the court has drawn conclusions on the matter. He urged the court to dismiss the application with costs.
Analysis and Determination
This court has considered the application and supporting affidavit and is of the view that the main issue for determination whether the Applicant is entitled to the conservatory orders sought. The Applicant has applied for conservatory orders restraining the Respondent from trespassing and or constructing a six-storey building adjacent to the Applicant’s property. The Applicant claims that the construction of the building by the Respondent has since resulted in damages on his property by virtue of the shared wall between the two properties. He annexed a report from the National Construction Authority (NCA) alleging structural failure on the Respondent’s storey building.
The Respondent on the other hand contends that the construction of the building on his suit property was finalized on 7th November, 2024 before the present application was filed and therefore the claim has since been overtaken by events. He also annexed approvals and licenses from NCA and NEMA.
It is not in dispute that the Applicant is the registered proprietor of the parcel of land known as NAKURU/MUNICIPALITY/BLOCK 21/956 while the Respondent is the registered proprietor of NAKURU/MUNICIPALITY/BLOCK 21/955 which properties are adjoining. It is noteworthy that the dispute between the parties regards whether or not the Respondent’s construction project has encroached onto the Applicant’s land.
The principles to be satisfied in granting of a conservatory order was expressed by Justice Onguto J. (as he then was) in the case of Board of Management of Uhuru Secondary School V City County Director of Education & 2 Others [2015] eKLR as follows:
“In summary, the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. Further, the Court should decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether to grant or deny a conservatory order.”
It is this court’s view that the principles required to be satisfied before granting conservatory orders or interim conservatory orders comprises of the following: -
a) First, an Applicant must demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he/she is likely to suffer prejudice.
b) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.
c) Thirdly, the court should consider whether, if an interim conservatory order is not granted, the substratum of the matter will be rendered nugatory.
d) The final principle for consideration is whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.
Section 107 of the Evidence Act provides as follows:
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
In the instant case, it is this court’s view that the first requirement on a prima facie case ought to be established by the Applicant. It is a fact that both parties annexed photographs of their properties showing the extent of construction and its alleged effect. It is my opinion that it was incumbent upon the Applicant to demonstrate that he has shown at prima facie level that the Respondent’s actions of construction have violated or threatened to violate his right. This court has considered the annexures photographs produced by the Applicant and the same only show cracks on a property and nothing more. The cracks do not confirm it was from which building. In addition, the NCA report in the Applicant’s supplementary affidavit was filed without the court’s leave and therefore this court shall not consider it. It shall also fail to consider the Respondent’s further affidavit as the same was filed without leave of this court.
Having considered the evidence on record, it is this court’s view that the Applicant has not placed any material before this court to demonstrate the nexus between the alleged damage on his property with that of the Respondent’s alleged construction. In the premises, this court is not satisfied that the Applicant has demonstrated a case with merit to deserve grant of conservatory orders. The upshot is that the application dated 1st March, 2025 lacks merit and the same is hereby dismissed with costs to the Respondent. It is so ordered.