Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC. Case No. 563 of 2009· [2017] KEELC 1741 (KLR)

Nesco Services Limited & another v City Council of Nairobi [2017] KEELC 1741 (KLR)

Environment and Land Court
28 September 2017
2,417 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Nairobi court threw out a developer's attempt to block demolition, because they skipped the appeal process required by law and never proved their claims.

What this practically means

#

Executive summary

#
The Plaintiffs, a limited liability company and its director, sued the City Council of Nairobi seeking a permanent injunction to restrain demolition of a building erected on L.R. No 12767/11, Magadi Road, Karen, declarations that they had obtained approvals for change of user to hostels and construction of executive hostels, a declaration estopping the Defendant from denying the validity of those approvals, a declaration that the Enforcement Notice dated 27/8/2009 was illegal, void and unenforceable, and damages of Kshs. 45 million with interest at 26% per annum compounded daily. The Plaintiffs asserted they had approvals for change of user and development permission and had built hostels for visiting professors at a cost of Kshs. 45 million. The Defendant contended that the approval was for hostels, but the Plaintiffs built 2-bedroom flats, that the Plaintiffs never applied for an occupation certificate, and that they failed to pursue the statutory appeal procedure under the Physical Planning Act after being served the Enforcement Notice. The court found that the burden was on the Plaintiffs to prove they built hostels and that they failed, noting their own bill of quantities described 'Proposed Cottages'. There was no evidence of the date of service of the Enforcement Notice, and no evidence of bad faith by the Defendant. The court held the Plaintiffs should have appealed under section 38 of the Physical Planning Act or applied for judicial review. The claim for special damages failed for want of proof of the loan agreement. The Plaintiffs also acted in bad faith by renting out the building after obtaining the interim injunction. The suit was dismissed with costs to the Defendant.

Key legal issues

#
01

Validity and enforceability of the Enforcement Notice

Holding

The court declined to declare the Enforcement Notice illegal and unenforceable because there was no evidence of the date or mode of service, and the Plaintiffs did not pursue the statutory appeal process

Reasoning

The notice specified the contravention as constructing flats without approved plans. There was no acknowledgment of service and the Plaintiffs adduced no evidence that they were served on 26/10/2009. Under sections 38 and 39(2) of the Physical Planning Act, the Plaintiffs should have appealed to the liaison committees and only then to the court. Their failure meant they could not question the validity of the local authority's action.

p. 4
02

Whether the Plaintiffs proved their claim on a balance of probabilities

Holding

The Plaintiffs did not prove their claim; the burden was on them to show they built hostels as approved, and they failed

Reasoning

The Defendant's witness testified that the approved drawings were for executive hostels while the Plaintiffs built 2-bedroom flats. The bill of quantities produced by the Plaintiffs itself described 'Proposed Cottages', which is different from a hostel. The court found no evidence of bad faith by the Defendant and held the Plaintiffs failed to discharge their burden of proof on a balance of probabilities.

p. 4
03

Claim for special damages of Kshs. 45 million plus interest at 26% per annum

Holding

The claim for damages failed for want of proof

Reasoning

The Plaintiffs alleged they borrowed from Housing Finance Ltd attracting interest of 26% per annum compounded daily, and valued the building at Kshs. 45 million. However, no loan agreement, documentary proof of the loan or interest, and no valuation report was produced. Special damages must be specifically pleaded and proved.

p. 4
04

Conduct of the Plaintiffs after obtaining the interim injunction

Holding

The Plaintiffs did not demonstrate good faith by letting out the disputed building after obtaining the temporary injunction

Reasoning

The 2nd Plaintiff admitted that after obtaining the interim injunction on 23/11/2011 he did not proceed with construction but rented out the building, which had occupants despite the absence of an occupation certificate. The court held this conduct showed lack of good faith and undermined the equitable relief sought.

p. 4

Legal principles established

#
  • Where an Enforcement Notice is issued under section 38 of the Physical Planning Act and no appeal is lodged, the aggrieved person cannot later question the validity of the local authority's action in court
  • A party aggrieved by an Enforcement Notice must first exhaust the statutory appeal process under the Physical Planning Act before invoking the court's jurisdiction
  • Special damages must be specifically proved with documentary evidence
  • Equity follows the law; a party seeking equitable relief must have followed the statutory law

Court orders

#
  1. 1.The Plaintiffs' suit was dismissed
  2. 2.Costs awarded to the Defendant
Jurisdiction invoked
Article 165(3) of the Constitution; Section 13 of the Environment and Land Court Act (disputes relating to land and the environment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nesco Services Limited & another v City Council of Nairobi [2017] KEELC 1741 (KLR)", Case Analysis (2017). ELC. Case No. 563 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1741/eng@2017-09-28

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