Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedCase No 439 of 2008· [2019] KEELC 3349 (KLR)

Anju Chanandin v City Council of Nairobi & another [2019] KEELC 3349 (KLR)

Environment and Land Court of Kenya
17 May 2019
2,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Nairobi court ruled that Nairobi City County unlawfully demolished a property owner's approved developments and must pay her Kshs. 500,000 in damages.

What this practically means

#

Executive summary

#
The Plaintiff, co-proprietor of LR No. 7752/65 in Kibagare Valley, Nairobi, sued the 1st Defendant (a body corporate under the Local Government Act) and the 2nd Defendant, claiming that on 22nd August 2008 they broke into and damaged her premises in purported enforcement of an Enforcement Notice dated 25th July 2008 alleging illegal conversion of use and unapproved extensions. She sought special damages of Kshs. 925,600/=, a permanent injunction, a declaration of illegality and breach of constitutional rights, and general damages. The Defendants filed defences but called no evidence at trial. The court, relying on the Plaintiff's uncontroverted evidence of a 1998 Town Planning Committee approval and a Certificate of Occupation, found the developments duly approved; the Enforcement Notice was therefore unlawfully issued and the entry constituted trespass. Applying the principles that pleadings unsupported by evidence remain mere statements, and that the burden of proof on a balance of probabilities remains on the plaintiff even at formal proof, the court held the 1st Defendant liable. Trespass being actionable per se, it awarded general damages of Kshs. 500,000/= with interest against the 1st Defendant. However, special damages was disallowed for lack of specific proof, receipts from 2010-2018 having no probative value, and the suit against the 2nd Defendant was dismissed, no culpability being proved, with no order for costs. Judgment was delivered at Nairobi on 17th May 2019 by J. M Mutungi, Judge, with costs of the suit awarded to the Plaintiff.

Key legal issues

#
01

Whether the Plaintiff's developments were duly approved

Holding

The court found the developments approved and authorized by the 1st Defendant, based on the 1998 Town Planning Committee approval and Certificate of Occupation, which went unchallenged

Reasoning

The Plaintiff produced an approval letter dated 12 October 1998 showing the Town Planning Committee approved plan registration D1495 on 18 September 1998, and a Certificate of Occupation issued 9 October 1998. The Defendants called no witness, so this evidence stood unchallenged and the 1st Defendant's allegations remained unsubstantiated.

p. 3
02

Whether the entry onto the Plaintiff's property was lawful

Holding

The Enforcement Notice was unlawfully issued since the developments were approved; the entry pursuant to it constituted trespass

Reasoning

Because the developments were approved, the Enforcement Notice premised on lack of approval lacked justification. The entry by the 1st Defendant's agents with armed police to enforce the unlawful notice was high-handed and constituted trespass on the Plaintiff's property.

p. 3
03

Whether special damages of Kshs. 925,600/= was proved

Holding

Special damages was unproven and disallowed

Reasoning

Although damage likely occurred, the Plaintiff merely listed items without proof they were on the property or were damaged. Receipts gathered between 2010 and 2018 could not be connected to the 2008 damage and had no probative value. A loss adjustor's report would have assisted.

p. 3
04

General damages for trespass

Holding

General damages of Kshs. 500,000/= awarded against the 1st Defendant

Reasoning

Trespass being actionable per se, proof of damage was unnecessary once trespass was established. The court found the Defendants forcibly descended on the premises with armed officers and turned the premises 'upside down', causing substantial damage, warranting an award against the 1st Defendant.

p. 3
05

Liability of the 2nd Defendant

Holding

Suit against the 2nd Defendant dismissed; her culpability was not proved

Reasoning

The Plaintiff's evidence did not establish the 2nd Defendant's culpability. The suit against her was accordingly dismissed, though without an order for costs against the Plaintiff.

p. 3

Legal principles established

#
  • Where a party fails to call evidence in support of its case, its pleadings remain mere statements of fact and the opposing evidence stands uncontroverted
  • The burden of proving a civil case on a balance of probabilities remains on the plaintiff even at formal proof
  • No development may be carried out within a local authority's area without development permission
  • Trespass is actionable per se and damages need not be proved once trespass is established
  • Special damages must be both specifically pleaded and specifically proved

Court orders

#
  1. 1.Judgment entered for the Plaintiff against the 1st Defendant
  2. 2.General damages of Kshs. 500,000/= together with interest at court rates from the date of judgment until payment in full
  3. 3.Costs of the suit awarded to the Plaintiff
  4. 4.Suit against the 2nd Defendant dismissed with no order for costs

Authorities

#

Legislation

  • Local Government ActCap 265 (Laws of Kenya)
  • Physical Planning ActCap 286; Sections 3, 30(1), 33, 38
  • Evidence ActCap 80; Sections 107, 108
  • Local Government (Adoptive By-Laws) (Building) Order 1968L.N 15/1969
  • City of Nairobi (Building) By-Laws 1948G.N 313/1948

Cases cited (3)

  • Trust Bank Limited -vs- Paramount Universal Bank Limited & 2 Others
    [2009] eKLR
  • Kirugi & Another -vs- Kabiya & 3 Others
    [1987] KLR 347
  • Wainaina Kinyanjui & 2 Others -vs- Andrew Nganga
    [2013] eKLR
Jurisdiction invoked
Original civil jurisdiction (tort and land claims); no specific constitutional/statutory provision cited

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Anju Chanandin v City Council of Nairobi & another [2019] KEELC 3349 (KLR)", Case Analysis (2019). Case No 439 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3349/eng@2019-05-17

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