David Mbuvi Kathitu & 14 others v City Council of Nairobi & 4 others [2019] KEELC 4995 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiffs had proprietary rights in the suit property
The plaintiffs failed to establish any proprietary interest in the suit property or any portion thereof
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.
Whether the defendants demolished the plaintiffs' structures
The plaintiffs did not prove that the defendants or any of them carried out or instructed the demolition
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.
Whether the plaintiffs were entitled to the reliefs sought
The claim failed wholly since no proprietary interest was established and no defendant was found liable
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.
Legal principles established
#- 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
#- 1.The plaintiffs' claim is dismissed wholly
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Original civil suit by plaint (Civil Procedure Act and Rules)
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.
- Manason Ogendo Afwanda v Alice Awiti Orende & another [2020] KEELC 104 (KLR)[2020] KEELC 104 (KLR)18 Dec 2020
Cite this brief
#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.