Nesco Services Limited & another v City Council of Nairobi [2017] KEELC 1741 (KLR)
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
#Key legal issues
#Validity and enforceability of the Enforcement Notice
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
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.
Whether the Plaintiffs proved their claim on a balance of probabilities
The Plaintiffs did not prove their claim; the burden was on them to show they built hostels as approved, and they failed
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.
Claim for special damages of Kshs. 45 million plus interest at 26% per annum
The claim for damages failed for want of proof
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.
Conduct of the Plaintiffs after obtaining the interim injunction
The Plaintiffs did not demonstrate good faith by letting out the disputed building after obtaining the temporary injunction
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.
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.The Plaintiffs' suit was dismissed
- 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.