George Kamau Wakanene & 2 others v City Council of Nairobi [2017] KEELC 3771 (KLR)
The bottom line
#Nairobi's city council wrongfully demolished homes without notice, and the High Court ordered it to pay each owner Kshs.2.5 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's demolition of the Plaintiffs' structures was justified
Not justified. The Plaintiffs' businesses were licensed by the Defendant, and demolition at night was a draconian and inhuman act breaching Articles 40 and 47 of the Constitution; the Defendant ought instead to have prosecuted or cancelled licences.
The court found the Plaintiffs were registered owners with certificates of title and held single business permits issued by the City Council, so their businesses were not unauthorized. The discretion under Section 39 of the Physical Planning Act was not absolute and had to be exercised reasonably and humanely. Night demolition was condemned as draconian and a breach of the right to property under Article 40 and fair administrative action under Article 47.
Whether Enforcement Notices were served on the Plaintiffs
No service was proved; the Defendant did not produce the alleged Enforcement Notices, so the demolition was illegal and without warning.
DW1 testified he served Enforcement Notices by leaving them at the business premises, but none of the notices were produced as exhibits. There was also no evidence of warnings or of any prosecution of the Plaintiffs for erecting illegal structures. The court held service unproved and the demolition contrary to Article 47 and natural justice.
Whether the Plaintiffs are entitled to the relief claimed
Yes. The demolition was unjustified, the Bills of Quantities were undisputed, and the Plaintiffs were entitled to judgment as prayed in prayers (i), (ii) and (iii), plus general damages of Kshs.2,500,000/= each.
The court found the demolition unfair and illegal and the resulting loss proved through uncontroverted Bills of Quantities produced by PW2. It granted the declaratory, injunctive and compensation prayers as pleaded, and awarded each Plaintiff Kshs.2,500,000/= general damages, guided by the award in Isaac Gathungu Wanjohi for breach of Article 47, plus PW2's attendance fees and costs.
Legal principles established
#- The statutory discretion of a local authority to enter land and take measures after an Enforcement Notice is not absolute and must be exercised humanely, cautiously and reasonably
- Private property may not be taken arbitrarily or destroyed without due process; demolition without notice breaches Articles 40 and 47 of the Constitution
- Demolition without service of an Enforcement Notice is unfair administrative action and offends the rule of natural justice that no one should be condemned unheard
- Where a party relies on service of Enforcement Notices, the notices must be produced in evidence; failure to produce them means service is not proved
Court orders
#- 1.Judgment entered for the Plaintiffs against the Defendant as prayed in the Plaint in terms of prayers (i), (ii) and (iii) of the Plaint
- 2.Each Plaintiff awarded general damages of Kshs.2,500,000/= for loss and damages
- 3.Plaintiffs awarded Kshs.15,000/- as special costs for PW2's court attendance fees
- 4.Plaintiffs awarded costs of the suit with interest thereon at court rates
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (Environment and Land Court) over claims relating to land and demolition; constitutional rights under Articles 40 and 47 of the Constitution of Kenya 2010 invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Kamau Wakanene & 2 others v City Council of Nairobi [2017] KEELC 3771 (KLR)", Case Analysis (2017). ELC No. 251 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3771/eng@2017-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.