Daniel Muiga v Naivasha Town Council [2014] KECA 92 (KLR)
The bottom line
#Kenya's Court of Appeal held that a council demolishing a kiosk without notice violated natural justice, but awarded only proved losses—KShs.19,061.
What this practically means
#Executive summary
#Key legal issues
#Whether the Council acted within its powers in denying the licence
The Council acted within its wide statutory powers under the Local Government Act (Cap 265) in denying the licence sought.
Part IX and Part XIV of the Local Government Act confer wide powers on local authorities over management, control and use of areas under their jurisdiction, including prohibition of obstruction in public places and environmental management. The court therefore held that refusal of the licence fell within those powers. However, this did not excuse the subsequent demolition without notice, which offended natural justice.
Legitimate expectation arising from committee approval
The appellant was justified in having a legitimate expectation that a licence would issue, having constructed the kiosk on the authority of the committee approval.
The respondent's Town Planning Markets Works and Housing Committee approved the application and fees were paid. The Council's alleged nullification of that approval was unsupported by any evidence. Drawing on the fairness principle in R v IRC ex p MFK Underwriting Agents, the court held the expectation legitimate and that the appellant acted properly in constructing the kiosk.
Liability for demolition without notice
The respondent was liable for the loss caused by demolishing the kiosk without notice, as it failed to act in good faith and in accordance with natural justice.
The Local Government Act is silent on notice before demolition. Where no procedure is prescribed, natural justice, due process and good faith are implied. The appellant should have been given an opportunity to remove the kiosk. The demolition by the Council's servants attracted vicarious liability, making the Council liable for the consequential loss and damage.
Quantum and proof of special damages
Special damages must be both pleaded and proved; only KShs.19,061/= (cost of constructing the kiosk) was proved.
Although the appellant claimed KShs.401,851/= and produced a demand letter for KShs.625,492/= of credit stock, he did not prove the total cost of stock destroyed or lost. Applying the settled principle that special damages must be pleaded and proved, the court awarded only the proved cost of construction with interest from the date of filing suit.
Legal principles established
#- Where no procedure is explicitly prescribed by statute, the rules of natural justice, due process, good faith and fairness are implied in administrative decision-making, including a requirement of notice before demolition of property.
- A local authority is vicariously liable for the torts of its servants and agents committed in the course of their employment.
- Where a public body's committee approves an application, the applicant has a legitimate expectation that the licence will issue, and that expectation ought not to be thwarted without fair process.
Court orders
#- 1.Appeal allowed to the extent that the appellant's claim in respect of special damages succeeds in the amount of KShs.19,061/= with interest at court rates from 10th May, 1990 until payment in full
- 2.Appellant awarded the costs of this appeal
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 2287 of 1990
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Muiga v Naivasha Town Council [2014] KECA 92 (KLR)", Case Analysis (2014). Civil Appeal No. 234 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/92/eng@2014-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.