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ELCPartially AllowedELC Suit No. 205 of 2010· [2020] KEELC 91 (KLR)

Naftal Okwanyo Masara & another v Town Clerk City Council of Nairobi & 4 others [2020] KEELC 91 (KLR)

Environment and Land Court
7 December 2020
9,652 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Nairobi's city council had to pay landowners for unlawfully demolishing their building without serving the required enforcement notice, even though the building itself broke approved plans.

What this practically means

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Executive summary

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The Plaintiffs, joint registered owners of L.R. No. 1870/III/530 in Westlands, sued the City Council of Nairobi (and later the County Government of Nairobi, which alone defended) after the Council arrested the 1st Plaintiff on 25/3/2010 for constructing contrary to approved plan EV507 and demolished their ongoing construction of a dsq and boundary wall in May 2010. They sought a permanent injunction, special damages of Kshs. 10,156,196 with interest at 24% per annum, and exemplary and general damages for unlawful arrest and denial of liberty. The Council defended, contending that the approval had been granted inadvertently, was lawfully disapproved on 20/5/2010 because the development compromised the harmonised design of a comprehensive scheme of single dwelling units, and that the Plaintiffs breached the conditions of approval. The court found that the Plaintiffs' development permission was lawfully disapproved and that the Plaintiffs departed significantly from the approved plan by erecting a three-floor second dwelling inconsistent with the 31.7m2 dsq approved. The arrest of the 1st Plaintiff was lawful because he had no approved structural plans at the time. However, the demolition was unlawful because the Council served no enforcement notice under Section 38 of the Physical Planning Act, making it liable to pay the value of the demolished works. The court awarded special damages of Kshs. 3,750,500.50 (repeat work of Kshs. 3,250,500.50 and site clearance of Kshs. 500,000) with interest at court rates from 30/7/2010, but declined all other prayers including damages for arrest, exemplary damages and the injunction. The Plaintiffs partially succeeded, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Plaintiffs constructed contrary to the approved plans

Holding

Yes - the Plaintiffs departed significantly from the approved plan for a small dsq of 31.7m2 and erected a large three-floor second dwelling inconsistent with the approval and the character of the estate

Reasoning

The approval was for a dsq and boundary wall; the Defendant's disapproval resolution recorded a plinth area of 31.7m2, which the court accepted as the size applied for. The court's site visit showed the erected structure contained multiple bedrooms over three floors and stood out from the estate's single-dwelling townhouses. The court therefore found substantial departure from the approved plan.

p. 9
02

Whether the Defendant lawfully disapproved the Plaintiffs' building plans

Holding

The disapproval was lawful; the grounds fell within the planning grounds for refusal under Rule 33 of the Physical Planning (Building and Development) (Control) Rules, 1998, and the Plaintiffs led no evidence of a right to be represented at the Town Planning Committee meeting

Reasoning

The disapproval was based on the ground that the proposed alteration would compromise the harmonized typical design of the comprehensive scheme, a permitted ground under Rule 33. The Plaintiffs did not demonstrate any requirement that they be represented at the committee meeting, so the hearing complaint failed.

p. 9
03

Whether the Defendant's demolition was lawful

Holding

No - the Defendant demolished without serving an enforcement notice under Section 38 of the Physical Planning Act and is liable for the value of the demolished works

Reasoning

Although the Defendant had powers under the Physical Planning Act to enforce development control, enforcement required an enforcement notice specifying the contravention and remedial measures. No such notice was served. Even where a structure is unlawfully erected, the authority must act strictly in accordance with the statutory procedure.

p. 9
04

Whether the 1st Plaintiff's arrest and detention was lawful

Holding

Yes - the arrest on 25/3/2010 for developing contrary to approved plans and without approved structural plans was lawful and no damages are payable

Reasoning

At the time of the arrest the Plaintiffs had not yet submitted satisfactory structural plans as required by the conditions of the 2/3/2010 approval. Section 30 of the Physical Planning Act criminalised development without development permission. The claim for damages for unlawful arrest therefore failed.

p. 9
05

What special damages were proved

Holding

Only item 6 (repeat work of Kshs. 3,250,500.50) and item 5 (site clearance of Kshs. 500,000) were proved, totalling Kshs. 3,750,500.50 with interest at court rates from 30/7/2010

Reasoning

The court accepted the engineer's and contractor's evidence on the repeat work necessitated by the demolition and the debris clearance. Items for preliminary works, foundations, boundary walling and spoiled materials would amount to double compensation, and items such as the signboard, hoarding, project manager's accommodation and loss of earnings were not proved.

p. 10

Legal principles established

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  • A local authority that demolishes a structure without first serving the enforcement notice required by the Physical Planning Act acts unlawfully and is liable to pay the value of the demolished structure
  • A landowner's right to property is exercised subject to land laws, planning laws and bylaws; development may only be altered with the local authority's approval
  • If a local authority is minded to demolish a structure erected without development permission, it must do so in strict observance of the law
  • Only special damages actually proved are recoverable; duplicated or unproved items are disallowed

Court orders

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  1. 1.The Defendant is liable to pay the Plaintiffs the value of the structure which it demolished
  2. 2.The Plaintiffs are awarded special damages of Kshs. 3,750,500.50 together with interest at court rates from 30/7/2010 until payment in full
  3. 3.The court declines to grant the other prayers sought in the Further Further Amended Plaint dated 9/5/2019
  4. 4.Each party will bear its own costs

Authorities

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Legislation

  • Physical Planning ActSections 29, 30, 31, 33, 38, 46, 48; Part V
  • Physical Planning (Building and Development) (Control) Rules, 1998Rules 33, 35, 36
  • Physical and Land Use Planning Act, Number 13 of 2019Sections 56, 57
  • Local Government Actprocedural regulation of council meetings
  • Constitution of Kenya, 2010Articles 40(3) and (5), 47, 49(1)(a)(1)
  • Sectional Properties Acttitle deed issued thereunder

Cases cited (2)

  • Abdulhamid Ebrahim Ahmed v Municipal Council Of Mombasa
    [2004] eKLR
  • Harriet Karimi v the Attorney General
    (2005) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over claims concerning land, development and planning (Environment and Land Court Act); suit commenced in 2010 and transferred for hearing

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, "Naftal Okwanyo Masara & another v Town Clerk City Council of Nairobi & 4 others [2020] KEELC 91 (KLR)", Case Analysis (2020). ELC Suit No. 205 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/91/eng@2020-12-07

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