Henry Kipkosgei Serem v Erdemann Properties Ltd & Mavoko Water & Sewerage Company Limited [2020] eKLR Case Summary

Court
Environment and Land Court at Machakos
Category
Civil
Judge(s)
O.A. Angote
Judgment Date
October 09, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Henry Kipkosgei Serem v Erdemann Properties Ltd & Mavoko Water & Sewerage Company Limited [2020] eKLR, highlighting key legal principles and implications for property law.

Case Brief: Henry Kipkosgei Serem v Erdemann Properties Ltd & Mavoko Water & Sewerage Company Limited [2020] eKLR

1. Case Information:
- Name of the Case: Henry Kipkosgei Serem v. Erdemann Properties Ltd & Another
- Case Number: ELC. CASE NO. 191 OF 2018
- Court: Environment and Land Court at Machakos
- Date Delivered: 9th October 2020
- Category of Law: Civil
- Judge(s): O.A. Angote
- Country: Kenya

2. Questions Presented:
The court must resolve the following central legal issues:
1. Whether a temporary injunction should be issued to prevent the disconnection of sewer services to the Plaintiff and residents of Greatwall Apartments Phase 1.
2. Whether the Plaintiff and residents should continue paying operational costs for the Waste Water Treatment Plant to the 1st Defendant pending resolution of ownership disputes.

3. Facts of the Case:
The Plaintiff, Henry Kipkosgei Serem, represents the residents of Greatwall Apartments Phase 1 and is in dispute with the 1st Defendant, Erdemann Properties Ltd, and the 2nd Defendant, Mavoko Water & Sewerage Company Limited. The background of the dispute revolves around the ownership and management of a Waste Water Treatment Plant that serves the residents of the Greatwall Apartments. The 1st Defendant developed the apartments and advertised amenities, including the Waste Water Treatment Plant, which was operational at the time of sale. However, issues arose when the 1st Defendant demanded payments for the Waste Water Treatment Plant, leading to disconnections and legal disputes.

4. Procedural History:
The Plaintiff filed an application on 4th October 2018 seeking a temporary injunction to prevent disconnection from the sewer services. The 2nd Defendant filed a counter-application on 11th October 2019, seeking to compel the Plaintiff to pay outstanding sewer bills. The Plaintiff opposed the 2nd Defendant's application, arguing that the 1st Defendant had previously been restrained from interfering with the Waste Water Treatment Plant's operations. The court reviewed the applications based on the legal principles governing injunctions.

5. Analysis:
- Rules: The court considered the provisions of the Water Act, 2016, specifically Sections 77(3) and 78(1), which outline the responsibilities of water service providers and their licensing requirements. The court also applied principles from the case of Giella v. Cassman Brown (1973) regarding the issuance of injunctions.

- Case Law: The court referenced several cases, including R.J.R. Macdonald v. Canada (Attorney General) and American Cyanamid v. Ethicon, to establish the criteria for granting injunctions, including the need for a serious issue to be tried, the potential for irreparable harm, and the balance of convenience between the parties.

- Application: The court found that the Plaintiff had a prima facie case as the ownership of the Waste Water Treatment Plant was in dispute, and the 1st Defendant had previously violated a court order by selling the plant to the 2nd Defendant. The court concluded that the 2nd Defendant could not demand payments for services rendered from a plant whose ownership was contested.

6. Conclusion:
The court ruled in favor of the Plaintiff, granting a temporary injunction against the Defendants from disconnecting sewer services and allowing the Plaintiff and residents of Greatwall Apartments Phase 1 to continue paying operational costs to the 1st Defendant until the ownership dispute was resolved. This ruling reinforces the importance of adhering to court orders and the rights of residents in property management disputes.

7. Dissent:
There were no dissenting opinions noted in the case.

8. Summary:
The court's ruling emphasizes the ongoing legal complexities surrounding property management and service provision in residential developments. It highlights the necessity for clarity in ownership and operational responsibilities to prevent service disruptions and legal conflicts among residents and service providers. The case underscores the importance of compliance with court orders and the legal protections afforded to residents in similar disputes.

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