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ELCPartially AllowedEnvironment & Land Case No. 207 of 2012 (Formerly HCC 35 of 2005)

Titus Gatitu Njau v Municipal Council of Eldoret [2015] KEELC 670 (KLR)

Environment and Land Court
30 January 2015
4,585 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court fined Eldoret's municipal council KShs 15.5 million for demolishing a building despite a court order stopping the demolition.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Eldoret Municipality/Block 4/337 in the Eldoret CBD, sued the Municipal Council of Eldoret to stop a threatened demolition of structures on the plot, obtaining interim injunctive orders from Gacheche J on 25 April 2005. Despite service of the order on the Deputy Town Clerk on 26 April 2005, Council employees demolished the building the next day. The plaintiff amended the plaint to claim Kshs. 10,000,000/= reconstruction damages and loss of rental income of Kshs. 81,000/= per month, plus exemplary damages. The defendant defended the demolition on the ground that the permitted user of the plot was a petrol station and notice had been given; it denied knowledge of the court order and contended that service did not comply with Section 263A of the repealed Local Government Act. The court held ownership undisputed, found the public utility claim unsupported, and held service proper, Section 263A being irrelevant to service of process. The demolition, carried out in defiance of a subsisting order, was improper and inexcusable. However, because the building did not conform to the permitted user, damages for loss of income and reconstruction were disallowed as they would benefit the plaintiff from an illegal user. The court awarded Kshs. 500,000/= general damages for trespass and Kshs. 15,000,000/= exemplary damages for flagrant disobedience of the court order, applying Rookes v Barnard as approved in Obongo v Kisumu Council. Judgment of Kshs. 15,500,000/= was entered against the defendant, with a declaration of ownership, a permanent injunction, costs to the plaintiff, and liability shouldered by the County Government of Uasin Gishu as successor.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the injunctive orders were served upon the defendant
  2. 2.Whether the demolition of the suit property by the defendant was justifiable
  3. 3.Whether the plaintiff suffered loss as a result of the defendant's actions and, if so, the quantification of damages

Key legal issues

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01

Validity of service of the interim injunction order

Holding

Service on an officer working in the office of the Town Clerk was proper; Section 263A of the Local Government Act had no bearing on service of process.

Reasoning

The process server served the order on Mr Sitienei, Deputy Town Clerk, and the defendant's witness agreed legal process was served in the Town Clerk's office. The defendant's reliance on Section 263A of the Local Government Act was misplaced as that provision concerns execution of judgments against local authorities, not service of process. The court found the defendant knew of the order before demolishing.

p. 5
02

Justifiability of the demolition

Holding

The demolition was improper because it was carried out in the face of a subsisting court order, regardless of whether the building breached planning regulations.

Reasoning

While the defendant might with appropriate notice have been entitled to demolish a building not conforming to the permitted user, the existence of the injunction made the demolition unlawful. The claim that the plot was a public utility was unsupported by any pleading or evidence, and ownership was conceded.

p. 5
03

Entitlement to damages for lost income and reconstruction

Holding

Both claims disallowed as they would benefit the plaintiff from an unauthorized user of the premises.

Reasoning

The premises were leased for use as a petrol station. The plaintiff's continued commercial use was a breach of the lease terms; the defendant's issuance of business licences did not waive the user restriction. Damages for reconstruction would fund a building for a non-permitted user.

p. 5
04

Exemplary damages for disobedience of a court order

Holding

A sum of Kshs. 15,000,000/= awarded as exemplary damages for flagrant disobedience of the injunction.

Reasoning

Applying Rookes v Barnard as approved in Obongo v Kisumu Council, the defendant's conduct in demolishing the building in the face of a court order was oppressive and repulsive. The award was meant to punish the defendant and send a message that court orders must be obeyed, taking into account the value of the property and the defendant's failure to make amends.

p. 6
05

General damages for trespass

Holding

Kshs. 500,000/= awarded as general damages for trespass.

Reasoning

Even though the claims for lost income and reconstruction failed, the defendant's entry onto and demolition of the plaintiff's building amounted to trespass, warranting general damages assessed on the nature of the property and the trespass.

p. 6

Legal principles established

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  • A party is bound to obey a court order whether or not it agrees with it, and defiance of an order justifies exemplary damages
  • Exemplary damages may be awarded where there is oppressive, arbitrary or unconstitutional action by servants of government, or where the defendant's conduct was calculated to procure benefit at the plaintiff's expense

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendant in the sum of Kshs. 15,500,000/= comprising Kshs. 500,000/= general damages for trespass and Kshs. 15,000,000/= exemplary damages
  2. 2.Declaration that as against the defendant, the plaintiff is the owner of the land parcel Eldoret Municipality/Block 4/337
  3. 3.Permanent injunction restraining the defendant from interfering with the plaintiff's occupation of Eldoret Municipality/Block 4/337
  4. 4.Plaintiff awarded costs of the suit
  5. 5.Liability of the judgment shouldered by the County Government of Uasin Gishu, successors of the Municipal Council of Eldoret

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction (Environment and Land Court Act)

Relief refused

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Damages for loss of rental income (Kshs. 81,000/= per month)

Loss of income was based on an illegal user of the premises contrary to the permitted user as a petrol station

p. 5

Damages for reconstruction of the demolished premises

Allowing reconstruction costs would permit the plaintiff to rebuild a building for a user that is not permitted under the town plan

p. 6

Costs

The plaintiff shall have costs of the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That judgement is hereby entered for the plaintiff against the defendant in the sum of Kshs. 15, 500,000/= comprising of Kshs. 500,000/= as general damages for trespass and Kshs. 15,000,000/= as exemplary damages.
p. 7final orders - damages award
That a permanent injunction is hereby issued, restraining the defendant from interfering with the defendant's occupation of the land parcel Eldoret Municipality/ Block 4/337.
p. 7final orders - permanent injunction
That for the avoidance of any doubt, the liability of the judgement herein will be shouldered by the County Government of Uasin Gishu, who are the successors of the Municipal Council of Eldoret.
p. 7final orders - successor liability
The defendant had a duty to obey the court order, whether or not they were in agreement with it. It is therefore my view that the demolition of the building was improper.
p. 5duty to obey court orders
Their conduct , of ignoring a court order was repulsive and inexcusable.
p. 5contemptuous conduct
The basis for awarding exemplary damages is to punish the defendant for its conduct. A wrong doer must not be allowed to benefit from his conduct.
p. 6rationale for exemplary damages
It is imperative that lessees of premises use the premises as directed by the lessor.
p. 5leasehold user obligations

Issues in the judgment

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minor

The judgment cites the provision as both 'Section 243A' and 'Section 263A' of the Local Government Act in consecutive references

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, "Titus Gatitu Njau v Municipal Council of Eldoret [2015] KEELC 670 (KLR)", Case Analysis (2015). Environment & Land Case No. 207 of 2012 (Formerly HCC 35 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/670/eng@2015-01-30

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