Microsoft Word - Casebook on Environmental law

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 6153 OF 1992

MAINA KAMANDA & ANOTHER====================== PLAINTIFFS

VERSUS

NAIROBI CITY COUNCIL & ANOTHER================= DEFENDANTS

RULING.

The applicants are two Nairobi residents and rate payers. They have instituted the present action
against the 1st respondent, the Nairobi City Council and the 2nd respondent, the erstwhile
Chairman of the Nairobi City Commission inter alia to restrain the 1st respondent from permitting
the 2nd respondent to continue to enjoy certain facilities and perquisites which he had enjoyed
when he had been the Chairman of the Nairobi City Commission. These facilities and perquisites
are the 1st respondent's house LR No.330/492 Korosho Road (it had been described in the
pleadings as LR No.330/493 Korosho Road, but this was subsequently corrected to read LR
330/492 Korosho Road), its office known as the Mayor's Parlour and telephones therein, and its
Mercedes Benz motor car registration number KAA 8075.

Upon the filing of the suit, the applicants applied for and obtained ex-parte a temporary injunction
which did not apply to the 1 st respondent's Korosho Road house because at that time the
correction in its description had not yet been made, but which did apply to all the other facilities
and perquisites of the 1 st respondent already described. At the beginning of the subsequent, inter
parties hearing of the related application, a preliminary objection was raised on behalf of the 2nd
respondent that the applicants had no locus standi to bring the action they had brought. This same
ground was among the grounds of objection filed on behalf of the 1 st Defendant. I decided it
would be convenient and proper that this ground should be argued first for if it succeeded that
would be the end of that matter.

The arguments put forward in support of the objection were that the applicant had no locus standi
since they had not shown that they had sufficient interest in seeking the relief they were seeking;
that since what they claimed was a matter in the realm of a public wrong, ex relatione, they
required the permission of the Attorney General to being the action which they had not got; that
the applicants have improperly brought the action in a representative capacity; and that the
applicants are mere busy bodies who seek to abuse the process of the court by instituting the
action. But in considering this matter of a mixed question of law and fact, I have to take into
consideration its surrounding circumstances. They are simply this:

• that the applicants say among other things;


• that as rate payers, they object to the 1 st respondent continuing to extend its facilities and
  perquisites to the 2 nd respondent after he had ceased to be the Chairman of the Nairobi City
  Commission and;


• that this amounted to a misuse of the funds of the 1 st respondent and that as ratepayers, they
  had sufficient interest to bring the action. I think that it is now well settled that a ratepayer as
  opposed to a taxpayer has sufficient interest as such, to challenge in court the action of a
  public body to whose expenses he contributes.