The court was required by the plaintiff to issue an injunction to restrain the defendants from trespassing upon the suit’s land and to order their eviction from the land.
The plaintiff, who is the owner of the land, claimed that his right to the enjoyment, occupation and use of the land was violated by the trespassers.
The defendants answer was that they had a permit from the city council of Nairobi to conduct their business, which was bound to enhance the environmental quality of the area. Therefore, they were not trespassers. They also pointed out that the plaintiff wanted them evicted so that he builds on this land and his construction project was a threat to a clean and healthy environment.
The court considered that if the Environmental Management and Co-Ordination Act states that every person in Kenya is entitled to a clean and healthy environment and has the duty to safeguard it, the action of the defendant was not acceptable. Indeed, the Constitution sanctifies the right to private property. The respondent where, therefore, not entitled to occupy the plaintiff’s property.
Thus the court followed the plaintiff’s request and issued an eviction order.
Click below to download the Judgement in PARK VIEW SHOPPING ARCADE v KANGETHE & 2 OTHERS (2004)eKLR