Municipal Council of Eldoret v Titus Gatitu Njau [2020] KECA 782 (KLR)
The bottom line
#Kenya's Court of Appeal wiped out Kshs 15.5 million in damages against Eldoret's municipal council, ruling statutory demolitions breaching court orders should be punished through contempt, not damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's demolition of structures on the suit property was lawful and/or justified, having regard to the Physical Planning Act and the change-of-user position
- 2.Whether the appellant's conduct was oppressive, arbitrary or unconstitutional so as to justify an award of exemplary damages
- 3.Whether the respondent could claim general damages for trespass against the appellant where the demolition was carried out in disobedience of a court order
- 4.Whether the appellate court was justified in interfering with the trial judge's exercise of discretion in assessing damages
Key legal issues
#Whether the demolition of the structures was lawful and sanctioned by statute
The demolition did not contravene any statute; the appellant acted under its powers under sections 29 and 38 of the Physical Planning Act, and the respondent had due notice of the demolition.
The court found that the appellant had statutory power under section 29 of the Physical Planning Act to prohibit or control the use and development of land and buildings, and under section 38 to serve enforcement notices. The respondent conceded he had notice and was using the property for an unapproved purpose. The trial judge had himself found that with appropriate notice the appellant would have been entitled to demolish the building. The only ground on which the demolition was faulted was disobedience of a court order, not any statutory illegality.
Whether exemplary damages of Kshs 15,000,000 were justified
No. The appellant's conduct was not oppressive, arbitrary or unconstitutional, and the award was set aside.
Applying Rookes v Barnard categories as adopted in Kenyan authority, exemplary damages punish and deter and lie only in rare instances. Since the demolition was sanctioned by statute and the respondent had due notice, the appellant's conduct did not meet any of the categories. Disobedience of the court order was a matter for contempt proceedings, which the respondent abandoned. The trial judge erred in principle, justifying appellate interference with the discretionary award.
Whether general damages for trespass of Kshs 500,000 were maintainable
No. The respondent cannot claim damages for trespass where the appellant was duly authorized by statute to demolish unlawful structures.
Restating the ingredients of trespass, the court noted trespass protects possession, but here the appellant acted under statutory authority with due notice given. The demolition was unlawful only in the sense of contempt of the injunction; that wrong is redressed by contempt proceedings, not damages in trespass. The award of general damages for trespass was therefore set aside alongside the exemplary damages.
Legal principles established
#- An appellate court may interfere with the quantum of damages awarded by a trial judge only where the judge took into account an irrelevant factor or left out a relevant one, or where the amount is so inordinately low or high as to be a wholly erroneous estimate.
- Exemplary damages may be awarded only in limited categories: oppressive, arbitrary or unconstitutional action by servants of government; conduct calculated to profit the defendant beyond the compensation payable; or where expressly authorized by statute.
- Disobedience of a court order in the course of a statutorily-sanctioned enforcement action is to be redressed through contempt proceedings, not through an award of damages in trespass.
- Trespass is a violation of the right to possession, and a plaintiff must prove a right to immediate and exclusive possession of the land, which is distinct from ownership.
Court orders
#- 1.Appeal allowed
- 2.Award of exemplary damages of Kshs 15,000,000 set aside
- 3.Award of general damages for trespass of Kshs 500,000 set aside
- 4.Costs of the appeal awarded to the appellant
- 5.Judgment decreed in accordance with Rule 32(3) of the Court of Appeal Rules
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Held that the demolition was statutorily sanctioned under the Physical Planning Act and that the respondent had due notice; disobedience of the injunction was a matter for contempt proceedings, not damages. Set aside both the exemplary damages of Kshs 15,000,000 and the general damages for trespass of Kshs 500,000, and awarded the costs of the appeal to the appellant.
Accordingly, I would allow the appeal and set aside the award of exemplary damages of Kshs 15,000,000/= and general damages for trespass of Kshs 500,000/=. I would award the costs of this appeal to the appellant.p. 6
Wrote the judgment
Agreed with J. Mohammed, JA's judgment, adding that the demolition, though in contempt of a court order, was not unlawful because the Council was enforcing planning laws, and that the redress lay in contempt proceedings; exemplary damages were not justified as the Council's actions were not calculated to profit it.
I concur that this appeal should be allowed and that orders be made as proposed by Hon. J. Mohammed, JA.p. 7
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- Eldoret ELC Cause No. 207 of 2012
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court; appeal from ELC Cause No. 207 of 2012
Relief refused
#Retention of the trial court's award of exemplary damages of Kshs 15,000,000
The appellant's conduct was not oppressive, arbitrary or unconstitutional; the demolition was statutorily sanctioned and the respondent had due notice.
Retention of general damages for trespass of Kshs 500,000
The demolition was authorized by statute and the respondent had due notice, so no damages for trespass could arise.
Costs
Costs of this appeal awarded to the appellant ("I would award the costs of this appeal to the appellant")
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, I would allow the appeal and set aside the award of exemplary damages of Kshs 15,000,000/= and general damages for trespass of Kshs 500,000/=. I would award the costs of this appeal to the appellant.
I concur that this appeal should be allowed and that orders be made as proposed by Hon. J. Mohammed, JA.
The demolition was an action whose redress was in contempt proceedings and not in action for damages.
trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership
The object of exemplary damages is to punish and deter.
Issues in the judgment
#The leading judgment is dated 3rd February 2020, but the concurring judgment of Okwengu, JA is dated 3rd April 2020 - a two-month discrepancy in delivery dates on the face of the record.
The judgment records that it is a single judgment of the court, but only two of the three named judges (J. Mohammed and Okwengu) signed opinions; no signature or separate opinion of Githinji, JA appears.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (16)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shalle (Suing on Behalf of the Estate of Shalle Hirbo Alias Shalle Hirbo) v Marsabit Township Women Group & 3 others (Environment and Land Case E001 of 2021) [2026] KEELC 3792 (KLR)[2026] KEELC 3792 (KLR)16 Jun 2026followed
- Doric Industries Limited v Aksharap Real Estate Limited (Environment and Land Case 686 of 2017) [2026] KEELC 1427 (KLR)[2026] KEELC 1427 (KLR)12 Mar 2026
- Mecca & another (Suing on behalf of the Estate of Estate of Elizabeth Nasimiyu Nyongesa) v County Government of Trans-Nzoia (Environment and Land Case E021 of 2023) [2025] KEELC 8376 (KLR)[2025] KEELC 8376 (KLR)26 Nov 2025applied
- Malindi Musketeers Limited v Attorney General & another (Environment and Land Case 50 of 2014) [2025] KEELC 6764 (KLR)[2025] KEELC 6764 (KLR)7 Oct 2025
- Dayow v Charity; Chief Land Registrar – IIsiolo & 3 others (Interested Parties) (Environment and Land Case 8 of 2022) [2025] KEELC 6574 (KLR)[2025] KEELC 6574 (KLR)16 Sept 2025applied
- Board of Management Ngara Girls High School & another v Erdemann Property Limited & another; Ministry of Education (Interested Party) (Environment and Land Petition E066 of 2024) [2025] KEELC 5478 (KLR)[2025] KEELC 5478 (KLR)18 Jul 2025applied
- Munyinyi (Suing as the Administrator of the Estate of Susan Munyinyi (Deceased)) v Chief Land Registrar Kajiado & 13 others; Muchanga (Interested Party) (Environment & Land Petition 11 of 2019) [2025] KEELC 4781 (KLR)[2025] KEELC 4781 (KLR)26 Jun 2025applied
- Mohan v Ali & 2 others (Environment and Land Appeal 3 of 2024) [2025] KEELC 4433 (KLR)[2025] KEELC 4433 (KLR)5 Jun 2025
- Kasarani Mall Limited & another v Principal Secretary Ministry of Defence & 4 others; The National Land Commission & another (Interested Parties) (Environment & Land Case E010 of 2022) [2025] KEELC 4075 (KLR)[2025] KEELC 4075 (KLR)19 May 2025applied
- Ethics & Anti-Corruption Commission v Mitema Holdings & 13 others (Environment & Land Case E203 of 2021) [2025] KEELC 4066 (KLR)[2025] KEELC 4066 (KLR)19 May 2025applied
- Taibjee & another v Kanabar & another; Kanabar & 6 others (Counter Claimers) (Environment and Land Case 154 of 2019) [2025] KEELC 3374 (KLR)[2025] KEELC 3374 (KLR)23 Apr 2025applied
- Ntinyari alias Lucy Muthee Ntonyari v Kinoti (Environment and Land Appeal E009 of 2023) [2025] KEELC 3345 (KLR)[2025] KEELC 3345 (KLR)23 Apr 2025applied
- Fungicha & 3 others v Musa & another (Environment & Land Case 019 of 2021) [2025] KEELC 3306 (KLR)[2025] KEELC 3306 (KLR)23 Apr 2025applied
- Githinji v Hared; Hared (Counter Claimer); Githinji (Defendant to the Counterclaim) (Environment & Land Case E222 of 2023) [2025] KEELC 2915 (KLR)[2025] KEELC 2915 (KLR)24 Mar 2025applied
- Kental Enterprises Ltd v Attorney General & 4 others (Petition 2 of 2019) [2025] KEELC 1470 (KLR)[2025] KEELC 1470 (KLR)24 Mar 2025applied
- Ngoje & 7 others v National Irrigation Authority & another (Civil Appeal E090 & E097 of 2024 (Consolidated)) [2025] KEELC 771 (KLR)[2025] KEELC 771 (KLR)14 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Municipal Council of Eldoret v Titus Gatitu Njau [2020] KECA 782 (KLR)", Case Analysis (2020). Civil Appeal No. 106 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/782/eng@2020-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.