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ELCPartially AllowedNairobi HCCC No. of 2011 (plaint dated 25th May 2011)· [2018] KEELC 1698 (KLR)

Martha Esperence Fernandez v Nairobi City County [2018] KEELC 1698 (KLR)

Environment and Land Court
28 September 2018
BEB M Eboso
1,919 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nairobi City County illegally demolished a South C homeowner's extension because it proved no enforcement notice was served, and was ordered to pay damages.

What this practically means

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Executive summary

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This is a first-instance decision of the Environment and Land Court at Nairobi, delivered by B M Eboso J on 28th September 2018, completing a hearing that had commenced and concluded before Nyamweya J. The plaintiff sued Nairobi City County over the demolition of her four-bedroomed massionette on LR No. 209/8294/338, South C, in May 2011 by servants of the City Council of Nairobi, seeking a permanent injunction, a declaration that her property was not on a road reserve, compensation for reconstruction costs of Kshs 983,880, Kshs 643,000 for damaged and looted property, interest and costs. The defendant contended that the plaintiff had illegally extended commercial use of the premises without approvals and that, having served an enforcement notice under the Physical Planning Act which she ignored, its demolition was lawful. The defendant called no evidence. The court framed two issues: the legality of the demolition and quantum. It found the demolition illegal because, although the defence asserted that an enforcement notice had been duly served, no evidence of service was tendered; the plaintiff's uncontroverted evidence established non-compliance with the Physical Planning Act. On quantum, the uncontroverted quantity surveyor's assessment of Kshs 983,880 was allowed; the Kshs 643,000 special damages claim failed for want of specific proof; general damages of Kshs 500,000 were awarded, the plaintiff's proposed Kshs 20,000,000 being inordinately high. The permanent injunction was refused as the defendant is a County Government entitled to enter premises to enforce the law. Judgment was entered for the plaintiff with costs and interest.

Key legal issues

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01

Whether the demolition of the plaintiff's premises by the Council was lawful

Holding

The demolition was illegal because the Council served no enforcement notice and led no evidence of service, and thus did not follow the procedure in the Physical Planning Act.

Reasoning

The defendant's predecessor admitted the demolition but asserted that it followed a duly served enforcement notice. It called no witness and tendered no evidence of service. The plaintiff's uncontroverted evidence showed she held a title and certificate of occupation. If the Council considered an extension illegal, it was duty bound to serve an enforcement notice and proceed only upon non-compliance; failing this, the demolition was procedurally illegal.

p. 2
02

Quantum of damages for the illegal demolition

Holding

The plaintiff was awarded Kshs 983,880 as proved cost of reconstruction plus Kshs 500,000 general damages; the Kshs 643,000 special damages claim failed for want of proof.

Reasoning

The quantity surveyor's assessment of reconstruction costs at Kshs 983,880 was uncontroverted and was allowed. General damages were assessed taking into account that the main house was not demolished, the value of the demolished structure and the inconvenience caused, at Kshs 500,000, the plaintiff's proposed Kshs 20,000,000 being inordinately high. The looted-property claim was special damages not specifically proved.

p. 2
03

Whether a permanent injunction should issue against the defendant

Holding

The permanent injunction was refused.

Reasoning

The court held that the defendant, as a County Government discharging constitutional and statutory mandates, must be able to enter premises to enforce or implement the law, and that an injunction would not be in the public interest.

p. 3

Legal principles established

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  • A County Government must serve an enforcement notice and afford the opportunity of compliance before demolishing allegedly illegal developments; without proof of service the procedural legality of a demolition cannot be vouched.
  • A claim for special damages must be specifically pleaded and specifically proved.

Court orders

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  1. 1.Judgment entered in favour of the plaintiff against the defendant
  2. 2.Costs of reconstructing the demolished property awarded at Kshs 983,880
  3. 3.General damages awarded at Kshs 500,000
  4. 4.Costs of the suit to the plaintiff
  5. 5.Interest on the awards of Kshs 983,880 and Kshs 500,000 from the date of judgment

Authorities

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Legislation

  • Constitution of KenyaArticles 29, 31, 40, 47, 185
  • Physical Planning ActSections 29, 30, 31, 38, 39, 45

Cases cited (6)

  • Virenda Ramji Gudila & 3 others vs. Attorney General
    (2014) eKLR
  • Joshua Kasina vs. District Works Officer Mwingi & 3 others
    (2006) eKLR
  • Dishon Gitau Mburu vs. Nairobi City Council & another
    (2012) eKLR
  • Harrison Mwangi Nyota vs. Naivasha Municipal Council
    CA No. 509 of 2003
  • Neno Evangelism Centre through the registered Trustees v Director of City Planning & 3 others
    (2012) eKLR
  • Verinda Ramji Gudila & Another v The Attorney General
    Nairobi HCCC No 480 of 2011
Jurisdiction invoked
First-instance civil suit by plaint; court exercising original jurisdiction (hearing commenced before Nyamweya J and completed by Eboso J)

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, "Martha Esperence Fernandez v Nairobi City County [2018] KEELC 1698 (KLR)", Case Analysis (2018). Nairobi HCCC No. of 2011 (plaint dated 25th May 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1698/eng@2018-09-28

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