Charles Nyakundi v City Council of Nairobi & another [2019] KEELC 2004 (KLR)
The bottom line
#Nairobi's City Council was ordered to pay over Kshs. 31 million for demolishing a man's buildings without notice, though he lost his ownership claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff had established ownership of the Suit Property
The Plaintiff proved he was allotted the Suit Property, was in possession, and had his building plans approved; documents including a letter confirming ownership, beacon certificate, approvals and rate receipts supported this.
The court examined the Town Clerk's Department documents on allocation, the beacon certificate, provisional approval of plans, a letter dated 29/5/2009 confirming ownership, and receipts for rates paid from 2004 to 2009. The 2nd Defendant conceded the allotment. This established allotment and possession, sufficient to found a claim for compensation.
Whether the demolition was lawful and who was responsible
The demolition was illegal and the 1st Defendant was responsible; the enforcement notice was not produced in evidence and no service was proved.
The 1st Defendant relied on an enforcement notice dated 4/11/2009 but did not produce it in evidence. Under Section 38 of the Physical Planning Act, a local authority must serve an enforcement notice specifying contraventions, with a right of appeal. Demolishing without notice or opportunity to air grievances denied the Plaintiff fair administrative action and breached his legitimate expectation.
Quantum of special damages
Special damages were partly proved by an unchallenged valuation report, but the court deducted unspecified or insufficiently particularised items, awarding Kshs. 26,355,000/= instead of the Kshs. 38,650,425/= claimed.
The valuation report itemised the land and development but left external works unspecified and some loose assets ambiguous, and certain development items appeared high without particularisation. The court subtracted those items from the grand total, holding that the Plaintiff should have demonstrated quantities and costs for each item.
Effect of the NLC report on the ownership prayers
The NLC report confirmed illegal demolition and the right to compensation, but directed that title be processed in favour of Oyster Village, so the ownership declaration and injunction could not be granted.
The NLC, exercising powers under Article 68(c)(v) of the Constitution and Section 14 of the National Land Commission Act, 2012, found the structures were illegally demolished and directed Oyster Village to compensate the members of Savannah Jua Kali at current market rate, after which title would be processed in favour of Oyster Village rather than the Plaintiff.
Legal principles established
#- Special damages must not only be pleaded but must also be specifically proved before they can be awarded
- Allocation of land, receipt of payments, issuance of a letter of allotment and approval of construction plans give rise to a legitimate expectation that the allottee would enjoy and use the property
- Demolition of a person's property without notice or an opportunity to be heard amounts to a denial of the right to fair administrative action
Court orders
#- 1.The court declined to grant prayers (a) and (b) of the amended plaint, namely the declaration of ownership and the permanent injunction
- 2.The Plaintiff is awarded Kshs. 26,355,000/= as special damages
- 3.The Plaintiff is awarded Kshs. 5,000,000/= as general damages
- 4.The Plaintiff is awarded the costs of the suit, to be borne by the 1st Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Nyakundi v City Council of Nairobi & another [2019] KEELC 2004 (KLR)", Case Analysis (2019). ELC Case No. 230 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2004/eng@2019-08-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.