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ELCDismissedNairobi HCCC (as stated in plaint references; suit by plaint dated 9th January 2004)· [2019] KEELC 3976 (KLR)

Kigika Developers Limited v City Council of Nairobi [2019] KEELC 3976 (KLR)

High Court of Kenya (Environment and Land jurisdiction inferred from subject matter; court not expressly named in excerpt)
25 March 2019
LKL. Komingoi
2,251 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A developer's Kshs 6.9 billion land claim against Nairobi failed because it no longer owned the land and couldn't prove its allegations.

What this practically means

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Executive summary

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By a plaint dated 9th January 2004, the plaintiff, Kigika Developers Ltd, sued the Nairobi City Council (now County Government of Nairobi) seeking a declaration that the defendant breached a material condition of a court order by failing to give it vacant possession of LR No. 209/12759 (Dandora Block F), the current market value of that property (valued at about Kshs 6.9 billion), an order compelling demolition of illegal structures and eviction of squatters, and damages. The claim arose from a consent order in earlier enforcement proceedings whereby the defendant offered the plaintiff the suit property in settlement of a decretal sum; the transfer was sealed by the court on 23rd October 1995. The defendant, which called no witnesses, submitted that it complied with the court order, delivered the property free of squatters, and that the plaintiff had sold the property to Sportsview Scrap Metal and Hardware Limited, hence lacked locus standi. The plaintiff said squatters frustrated possession and that its sister company's attempted rescission entitled it to sue. The court framed four issues: whether the defendant allocated the property under the consent order, whether it was free from encumbrances, whether the plaintiff had locus standi, and costs. It found the defendant had complied, the property was free of encumbrances when delivered, the plaintiff had not proved the pleaded misrepresentation, and the plaintiff was not the registered owner, having transferred the property before filing suit with no effective rescission. The suit was dismissed with each party bearing its own costs, the court taking into account the defendant's failure to call witnesses.

Key legal issues

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01

Whether the defendant complied with the consent order and delivered the suit property free from encumbrances

Holding

The defendant complied; the property was free from squatters and encumbrances at the time of delivery

Reasoning

PW2 admitted under cross-examination that when the property was received from the City Council it had no squatters; the encroachment date was unknown. The plaintiff pleaded particulars of misrepresentation but led no evidence to prove them. The court held the title was free from encumbrances and the defendant met its part of the bargain under the consent order (Exhibit P8).

p. 3
02

Whether the plaintiff had locus standi to institute the suit

Holding

The plaintiff lacked locus standi because it had transferred the suit property to Sportsview Scrap Metal and Hardware Limited before filing suit, and the rescission was never acted upon

Reasoning

PW2 admitted the property was sold to Sportsview Scrap Metal and Hardware Limited for Kshs 5 million and remained registered in that company's name. Letters (Exhibits P16 and 17) purporting to rescind the contract were never acted upon and re-conveyance never occurred. The registered owner should have sued; the court applied Macfoy vs United Africa Ltd on nullity of proceedings founded on a void act.

p. 3
03

Whether the plaintiff proved its case on a balance of probabilities

Holding

The plaintiff failed to prove any of the allegations in the plaint

Reasoning

The defendant called no witnesses but the burden remained on the plaintiff. There was no evidence supporting the pleaded particulars of misrepresentation, no proof of when squatters encroached, and no proof of ownership of the suit property at the time of filing. The claim for compensation, market value, eviction and damages therefore collapsed.

p. 3

Legal principles established

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  • Whoever alleges must prove - a party must prove particulars of misrepresentation pleaded
  • A suit founded on a proceeding by a party without locus standi is a nullity
  • Parties are bound by their pleadings

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Cases cited (7)

  • Alfred Njau & Others vs City Council of Nairobi
    [1983] eKLR
  • Wilmot Mwadilo & 3 Others vs Eliud Timothy Mwamunga & Another
    [2017] eKLR
  • Patrick Kiseki Mutisya vs K. B Shangani & Sons Ltd & Others
    [2012] eKLR
  • Macfoy vs United Africa Ltd
    [1961] 3 ALL ER
  • Sirikwa Squatters Group vs Commissioner of Lands & 9 Others
    [2017] eKLR
  • R (Bibi) vs Newham London Borough Council
    [2001] EWCA Civ 607 [2002] 1 WLR 237
  • R vs Jockey Club ex p RAM Racecourses
    [1993] 2 All ER 225
Jurisdiction invoked
Original civil suit by plaint (land dispute); no specific constitutional provision invoked in the judgment

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, "Kigika Developers Limited v City Council of Nairobi [2019] KEELC 3976 (KLR)", Case Analysis (2019). Nairobi HCCC (as stated in plaint references; suit by plaint dated 9th January 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3976/eng@2019-03-25

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