Maggie Mbogo Macniven t/a Garden of Eden Restaurant v North Lake Limited & 2 others [2019] KEELC 1152 (KLR)
The bottom line
#Nairobi County was ordered to pay over Kshs 12.7 million for demolishing a restaurant without notice, with extra damages to punish the county.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd Defendant (Nairobi County Government) was properly sued although the suit predated the County Government Act
The 3rd Defendant is properly sued as successor in law to the City Council of Nairobi; failure to amend its name did not render the suit defective.
Although the suit was filed on 28 February 2012 before the County Government Act came into force, the county government is established under Article 176 of the Constitution and inherited the assets and liabilities of the defunct City Council by operation of law. It was aware of the suit throughout, so the unamended name caused no defect.
Whether the demolition of the Plaintiff's structures was lawful and who carried it out
It was the 3rd Defendant's officers and/or agents who demolished the structures, and the demolition was unlawful because no notice under Section 30(4) of the Physical Planning Act was issued.
The Plaintiff's evidence was corroborated by DW1, who stated the 3rd Defendant's agents stormed the property and demolished the structures. The 3rd Defendant offered no evidence at trial. Section 30(4) required notice to restore the land within ninety days before any forced restoration; this was never given, so the entry and demolition constituted unlawful trespass for which the 3rd Defendant was liable.
Quantum of special damages recoverable
Special damages established at Kshs. 6,777,432.46, being the assessed gross loss of Kshs. 14,708,932.46 less Kshs. 7,931,500/= attributed to buildings and structures erected without change of user.
The court accepted the expert loss assessment report by PW2 but was not bound by it. Losses attributable to renovations and structures erected before change of user was obtained could not be visited on the 3rd Defendant, since on due process the Plaintiff would have been required to restore the premises. The remaining losses on stock, fittings and equipment were supported by photographs and the nature of the business.
Whether the 1st Defendant was liable and whether its counterclaim succeeded
The 1st Defendant was not an active participant in the demolitions and its counterclaim failed as unproven.
Though the Plaintiff alleged the 1st Defendant's agents accompanied the demolitions, no evidence established collusion or active participation. The 1st Defendant had leased to the 2nd Defendant, knew of the subletting, and the demolitions damaging its building were not attributable to the Plaintiff, so no culpability was proved on either side.
Entitlement to general and exemplary damages
General damages of Kshs. 1,000,000/= for trespass and exemplary damages of Kshs. 5,000,000/= awarded against the 3rd Defendant.
The unlawful entry constituted trespass. The agents of the 3rd Defendant, an organ of state, acted with impunity and in a high-handed manner with the object of causing damage and evicting the Plaintiff, falling within the Rookes v Barnard category of oppressive or arbitrary action by servants of government, justifying exemplary damages.
Legal principles established
#- A county government, as successor to a defunct municipal council, inherits its assets and liabilities and is properly sued even where the plaint was filed under the former name
- Before demolishing unauthorised structures, a local authority must comply with the notice procedure under Section 30(4) of the Physical Planning Act; demolition without such notice is unlawful
- Special damages must be specifically pleaded and strictly proved
- Exemplary damages may be awarded against servants of government for oppressive, arbitrary or unconstitutional action
Court orders
#- 1.Special damages in the sum of Kshs. 6,777,432.46 together with interest at court rates from the date of filing the suit until payment in full
- 2.General damages in the sum of Kshs. 1,000,000/=
- 3.Exemplary damages in the sum of Kshs. 5,000,000/=
- 4.Interest on general and exemplary damages at court rates from the date of judgment until payment in full
- 5.The 3rd Defendant to pay the Plaintiff's and the 1st Defendant's costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over the land dispute; the 3rd Defendant's succession to the City Council of Nairobi under Article 176 of the Constitution and Section 2 of the County Government Act 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maggie Mbogo Macniven t/a Garden of Eden Restaurant v North Lake Limited & 2 others [2019] KEELC 1152 (KLR)", Case Analysis (2019). Case No 102 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1152/eng@2019-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.