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ELCDismissedNot stated in judgment (plaint dated 7th April, 2009)· [2019] KEELC 4995 (KLR)

David Mbuvi Kathitu & 14 others v City Council of Nairobi & 4 others [2019] KEELC 4995 (KLR)

Environment and Land Court / High Court of Kenya (Nairobi)
24 January 2019
5,285 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Over 100 Nairobi plot buyers lost a Kshs. 940 million demolition claim because they had no written sale agreements and couldn't prove who demolished their structures.

What this practically means

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Executive summary

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Fifteen plaintiffs, suing for themselves and 89 others, brought suit against the City Council of Nairobi (1st defendant) and the heirs and a company associated with the estate of Joseph Mureithi Maingi (deceased), registered proprietor of L.R No. 7107/2 off North Airport Road, Nairobi. They claimed to have purchased plots from the deceased and later his heirs, constructed structures valued at over Kshs. 940 million, and sought a permanent injunction, general damages, or alternatively Kshs. 940 million, plus costs. The 1st defendant admitted issuing an enforcement notice under the Physical Planning Act but denied involvement in the demolitions; the 2nd to 5th defendants did not attend the hearing. The court framed three issues: the plaintiffs' proprietary rights, whether the defendants demolished the structures, and entitlement to reliefs. The court found the plaintiffs' evidence of sale agreements so scanty - unsupported receipts without land particulars - and, applying section 3(3) of the Law of Contract Act, held that no enforceable proprietary interest was established. The deceased was not a party, the defendants were sued individually, and the unpleaded adverse possession claim was misconceived. On liability, the court, applying Kenya Airports Authority v Mitu-Bell Welfare Society, held that suspicion and speculation cannot found civil liability; the plaintiffs failed to prove that the defendants or their alleged goons, or the 1st defendant, effected the demolitions. The suit was dismissed wholly, each party bearing its own costs. The court did not condemn the plaintiffs to pay costs given the circumstances of the case.

Key legal issues

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01

Whether the plaintiffs had proprietary rights in the suit property

Holding

The plaintiffs failed to establish any proprietary interest in the suit property or any portion thereof

Reasoning

The deceased registered proprietor was not sued; defendants 2-4 were sued in individual capacities, not as legal representatives of the estate. The only evidence of the alleged sale agreements were receipts that did not identify the land or the purchase price. The claim also failed under section 3(3) of the Law of Contract Act for want of written contracts, and the unpleaded adverse possession claim could not lie against a non-party.

p. 4
02

Whether the defendants demolished the plaintiffs' structures

Holding

The plaintiffs did not prove that the defendants or any of them carried out or instructed the demolition

Reasoning

Although the structures were admittedly demolished, the plaintiffs attributed the demolition to goons hired by the 2nd to 5th defendants without substantiating those allegations. The 1st defendant denied enforcing its notice, and no evidence linked it to the demolition. The court, adopting the reasoning in Kenya Airports Authority v Mitu-Bell Welfare Society, held that courts must decide on probabilities, not suspicion.

p. 5
03

Whether the plaintiffs were entitled to the reliefs sought

Holding

The claim failed wholly since no proprietary interest was established and no defendant was found liable

Reasoning

The injunction had been overtaken by events and could not issue in any event absent a proprietary interest. The claims for special and general damages depended on a finding of culpability against a defendant, which was not made. The suit was therefore dismissed with no order as to costs.

p. 5

Legal principles established

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  • Findings of civil liability cannot be based on suspicion, speculation or possibilities but on probabilities proved on a balance of probability
  • A contract for the disposition of an interest in land must be in writing to be enforceable in court
  • Where a defendant is sued in a representative capacity, the plaint must state the capacity and how it arises
  • Parties are bound by their pleadings and cannot introduce a claim such as adverse possession through submissions

Court orders

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  1. 1.The plaintiffs' claim is dismissed wholly
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Physical Planning ActChapter 286 Laws of Kenya (enforcement notice provisions)
  • Law of Contract ActSection 3(3), Chapter 23 Laws of Kenya
  • Land ActSection 38
  • Civil Procedure RulesOrder 4 rule 4

Cases cited (6)

  • Ibrahim Sangor Osman v Minister of State for Provincial Administration & Internal Security & 3 others
    [2011] eKLR
  • Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railway Staff Retirement Benefits Scheme & 3 others
    Nairobi Petition No. 65 of 2010, [2013] eKLR
  • Kahindi Ngala Mwagandi v Mtana Lewa
    [2014] eKLR
  • June Seventeenth Enterprises Ltd v Kenya Airports Authority & 4 others
    [2014] eKLR
  • Neno Evangelism Registered Trustees v Director of City Planning & 3 others
    [2012] eKLR
  • Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others
    Nairobi CA No. 218 of 2014
Jurisdiction invoked
Original civil suit by plaint (Civil Procedure Act and Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "David Mbuvi Kathitu & 14 others v City Council of Nairobi & 4 others [2019] KEELC 4995 (KLR)", Case Analysis (2019). Not stated in judgment (plaint dated 7th April, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4995/eng@2019-01-24

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