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ELCPartially AllowedPlaint dated 6th November 2007 (Thika)· [2015] KEELC 525 (KLR)

John Kariuki Maina v Town Clerk of The Municipal Council of Thika [2015] KEELC 525 (KLR)

High Court of Kenya
23 April 2015
JOJ. L. ONGUTO
1,790 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A temporary occupation licence can't be sold or transferred, and claims for special damages succeed only if you keep receipts proving every shilling.

What this practically means

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Executive summary

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The Plaintiff sued the Thika Municipal Council alleging that he purchased a canteen site (Site No. 86 B along Garissa Road, Thika) from a licensee in 1997, paid licence renewal and building plan charges, but that Council officials in July 2002 conspired to sell the plot to a third party. He sought damages, monthly profit of 15% (later increased to 25% in submissions) and costs; in submissions he quantified Kshs. 450,000/-. An earlier striking-out application by the Defendant was dismissed by Mbogholi-Msagha J on 14th June 2011. The matter proceeded ex parte after the Defendant failed to attend or file witness statements. The court held, applying Runda Coffee Estate v Ujagar Singh, Faraj Maharus and Omar v Murania, that a Temporary Occupation License is personal and creates no disposable interest, so the licensee could not validly transfer the site to the Plaintiff. Nonetheless, on the Council minutes and correspondence, the court found no malice: the site fell within Kenyatta Primary School land and the alternative site had a sewer line, with the Council promising the Plaintiff first priority. The Plaintiff failed to prove dispossession or fault by the Council, so general damages and profit claims failed. Applying the principle that special damages must be specifically proved, the court awarded only Kshs. 2,050 proved by receipts, with interest at court rates from filing, and dismissed the rest of the claim.

Key legal issues

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01

Effect of a Temporary Occupation License

Holding

A TOL confers only a permissive, personal right of occupation and creates no transferable interest in the property

Reasoning

The court relied on authorities including Runda Coffee Estate and Omar v Murania holding that a licence is personal and creates no interest that the licensee can dispose of. Accordingly the licensee had no authority to sell the site to the Plaintiff, though the Plaintiff did pay and sought renewal.

p. 2
02

Whether the Council wrongfully dispossessed the Plaintiff

Holding

No; the Council lawfully declined to allocate or licence the site under s.165 of the Local Government Act and there was no malice

Reasoning

Section 165(1) empowered the local authority to refuse or cancel licences on grounds including non-conformity with by-laws and public interest. Council minutes showed the disputed site fell within Kenyatta Primary School and the alternative site had a sewer line beneath it, with first priority promised to the Plaintiff. No mischief was established.

p. 3
03

General damages and profit

Holding

Claim fails; no business was ever commenced so no profit basis exists

Reasoning

The Plaintiff admitted he never commenced business, so there is no foundation for an award of lost profits. Coupled with the finding that the Defendant was not at fault, the general damages claim fails entirely.

p. 3
04

Special damages

Holding

Only proved payments of Kshs. 2,050 recoverable

Reasoning

Special damages must be specifically proved. The Plaintiff produced receipts totalling Kshs. 2,050 (licence renewal, plan approval/inspection card, copies and printing, council minutes) but provided no receipt for the Kshs. 10,350 deed plan drawing fees.

p. 4

Legal principles established

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  • A temporary occupation license is personal to the licensee and creates no interest in the land capable of disposal
  • Special damages must be pleaded and specifically proved

Court orders

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  1. 1.Judgment entered for the Plaintiff in the sum of Kshs. 2,050/= with interest at court rates from the date of filing suit until full payment
  2. 2.The rest of the Plaintiff's claim dismissed

Authorities

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Legislation

  • Local Government Act (now repealed)section 144(5)
  • Local Government Act (now repealed)section 165(1)

Cases cited (3)

  • Faraj Maharus (Administrator of the Estate of Khadija Rajab Suleiman) v J. B. Martin Glass Industries & 3 Others
    C.A. No. 130 of 2003
  • Runda Coffee Estate LTD. v Ujagar Singh
    [1966] E.A. 564
  • Omar & 8 Others v Murania & Another
    [2006] 1 KLR (E&L) 206
Jurisdiction invoked
Original civil jurisdiction over the Plaint filed in the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Kariuki Maina v Town Clerk of The Municipal Council of Thika [2015] KEELC 525 (KLR)", Case Analysis (2015). Plaint dated 6th November 2007 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/525/eng@2015-04-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.