Florence Mbai T/A Fountain of Life Children's Home & another v City Council of Nairobi [2015] KEELC 582 (KLR)
The bottom line
#Nairobi's City Council unlawfully demolished a church and children's home without proper notice, and the High Court ordered it to pay Kshs 8.5 million plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the demolition of the Plaintiffs' structures was lawful
The demolition was unlawful - no valid enforcement notice was issued or served on the Plaintiffs, no notice covered LR 209/14329, and the criminal case court order did not reference the Plaintiffs or the parcel
The court examined the enforcement notices and found they were addressed to a differently named entity and to different parcel numbers, with no notice covering LR 209/14329. There was no proof that Mohamed Rashid was the owner, occupier or developer of LR 209/14213. The City Court order lacked a land reference number and was not directed at the Plaintiffs. Service and due process under section 38 of the Physical Planning Act therefore failed.
Entitlement to special damages
Special damages awarded at Kshs 8,000,000/= instead of the Kshs 19,179,150/= claimed
Special damages must be pleaded and strictly proved. Although the Plaintiffs could not produce receipts because documents were destroyed in the demolition, the court accepted the explanation and relied on the balance sheet showing net assets of Kshs 6,400,564.45 as at 31st March 2006, allowing appreciation to the date of filing to arrive at Kshs 8,000,000/=.
Whether exemplary and punitive damages were warranted
Awarded at Kshs 500,000/= for arbitrary and high-handed action
Applying Obongo v Municipal Council of Kisumu, the court found the demolition was carried out at night without notice and without regard to the welfare of children housed in the structures, constituting oppressive, arbitrary action by servants of a government entity, which is a proper case for exemplary damages.
Whether a permanent injunction could issue over the suit parcels
Refused - the Plaintiffs held only letters of allotment, not title
The letters of allotment related to unsurveyed plots 'E' and 'F'. Following Dr. Joseph Arap Ng'ok and Wreck Motors Enterprises, a letter of allotment is merely an offer to treat; issued title is supreme. With no evidence of title and third parties apparently having built on the land, an injunction could not issue.
Legal principles established
#- A local authority demolishing unauthorised developments must strictly comply with the enforcement notice procedure under section 38 of the Physical Planning Act; demolition without valid notice and service is unlawful
- Special damages must be both pleaded and strictly proved
- Exemplary and punitive damages are available for oppressive, arbitrary or unconstitutional action by servants of government
- A letter of allotment is not a title but an offer to treat
Court orders
#- 1.The Defendant shall forthwith pay the Plaintiff special damages of Kshs 8,000,000/= with interest at court rates from the date of filing of the suit until payment in full
- 2.The Defendant shall forthwith pay the Plaintiff exemplary and punitive damages of Kshs 500,000/= with interest at court rates from the date of judgment until payment in full
- 3.The Defendant shall meet the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; claims transferred from the subordinate court pursuant to an order in Misc. Application No. 652 of 2009 and consolidated with the instant suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Florence Mbai T/A Fountain of Life Children's Home & another v City Council of Nairobi [2015] KEELC 582 (KLR)", Case Analysis (2015). HCCC (consolidated: CMCC No. 14181 of 2006; HCCC No. 6 of 2007; HC Misc. Application No. 652 of 2009) - main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/582/eng@2015-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.