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ELCPartially AllowedNot stated in the judgment as provided (ELC Suit, Makueni)· [2020] KEELC 2379 (KLR)

Joseph Mutua Zakayo v County Govt of Makueni & 9 others [2020] KEELC 2379 (KLR)

Environment and Land Court
28 May 2020
11,305 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~45 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who paid for and held an allotment over a plot won Kshs 2.5 million after the county government and rivals illegally demolished his building.

What this practically means

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Executive summary

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The Plaintiff sued ten Defendants, alleging he was the legal owner of plot No. 290 Emali town and that his commercial building under construction was demolished in 2016 by agents of the County Government of Makueni acting with the 9th and 10th Defendants, representatives of the late James M. Makenzi who claimed the plot through a 1995 allotment letter. The court framed five issues: the effect of the Plaintiff's failure to give statutory notice under the Government Proceedings Act, identification of the plot, ownership, responsibility for the demolition, and the appropriate orders. On the notice issue, the court accepted that s13A(1) applies to County Governments but, adopting the access-to-justice reasoning in the Kenya Bus Service case, held non-compliance was not fatal, with the remedy being denial of costs rather than striking out. On ownership, both claimants had failed to comply with allotment conditions within 30 days, but the court found the County Council re-allocated the plot to the Plaintiff after a 2002 verification exercise, and the County Government waived the lapse of his offer by accepting his payment in November 2002; the 10th Defendant's inaction for a decade after her husband's death was inequitable. The Plaintiff was held to be the legal owner. PW4's unshaken eyewitness testimony, corroborated by the 10th Defendant's admissions, established that the 9th Defendant supervised the demolition with County Government involvement, and the County Government's issuance of enforcement notices despite having approved the building plans was negligent. Judgment was entered against the 1st, 9th and 10th Defendants jointly and severally for Kshs 2,508,885/- (Kshs 1,158,885/- actual damage, Kshs 1,200,000/- loss of rental income over 40 months, and Kshs 150,000/- general damages for trespass) plus a permanent injunction, while the suit against the 2nd to 8th Defendants was dismissed with costs.

Key legal issues

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01

Effect of failure to give statutory notice under the Government Proceedings Act

Holding

Non-compliance was not fatal; the County Government is a level of Government within s13A(1) but emerging access-to-justice jurisprudence prevails over rigid formalism

Reasoning

The court held s13A(1) GPA applies to County Governments as constitutionally recognized levels of Government and the Plaintiff gave no notice. However, relying on Majanja J's reasoning in the Kenya Bus Service case, the court found the old Walumbwa decision rigid, held access to justice under the Constitution requires looking beyond the dry letter of the law, and imposed the lesser remedy of denying costs.

p. 10
02

Ownership of plot No. 290 Emali

Holding

The Plaintiff is the legal owner on a balance of probabilities; Makenzi's allotment lapsed for non-compliance and the plot was re-allocated to the Plaintiff

Reasoning

Both claimants failed to comply with allotment conditions within 30 days, but the County Council's verification committee in 2002 confirmed the Plaintiff's ownership, the County Government's computer database recorded him as owner, and the County Government waived the lapse of his offer by accepting his payment on 5th November 2002. Makenzi's widow acted only in 2015, 20 years after allotment and a decade after his death, making partial payment of Kshs 3,860 out of Kshs 10,527.

p. 11
03

Responsibility for the demolition

Holding

The 1st (County Government), 9th and 10th Defendants are jointly and severally liable

Reasoning

PW4 was an eyewitness who saw the 9th Defendant supervise the demolition and was unshaken in cross-examination; his account was corroborated by the 10th Defendant's own admission that her brother-in-law and people from the County Government demolished the building. The County Government handled the dispute negligently, issuing an enforcement notice despite having approved the building plans, which catalysed the demolition.

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Quantum of damages

Holding

Kshs 2,508,885/= awarded: Kshs 1,158,885/= actual damage per the unrebutted valuation report, Kshs 1,200,000/= loss of rental income over 40 months at Kshs 30,000/= per month, and Kshs 150,000/= general damages for trespass

Reasoning

The Plaintiff produced a valuation report assessing damage at Kshs 1,158,885 with no rebuttal by independent report. The projection of Kshs 30,000 monthly rental income was found reasonable, computed from January 2017 to April 2020. General damages for trespass were awarded in addition to proved loss, following Park Towers Ltd v John Mithamo Njika and Halsbury's principles on trespass damages.

p. 12

Legal principles established

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  • A letter of allotment does not confer property rights unless there is acceptance and payment within the stipulated time; a lapsed offer may, however, be waived by conduct of the allocating authority
  • Non-compliance with the statutory notice requirement under section 13A(1) of the Government Proceedings Act is not fatal to a suit; the remedy is denial of costs, not striking out
  • Where trespass is proved, general damages may be awarded without proof of specific loss

Court orders

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  1. 1.Suit against the 2nd to 8th Defendants dismissed with costs
  2. 2.Permanent injunction restraining the 1st, 9th and 10th Defendants from trespassing, entering, encroaching, changing the ownership records at the Makueni County Registry or Ardhi House, Nairobi, or interfering with the Plaintiff's occupation, possession and ownership of plot No. 290 Emali Town
  3. 3.An order that the 1st, 9th and 10th Defendants compensate the Plaintiff for loss and damage occasioned by the demolished structure
  4. 4.Judgment for Kshs. 2,508,885/= being general damages for trespass, loss of profits and illegal demolition, jointly and severally against the 1st, 9th and 10th Defendants

Authorities

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Legislation

  • Government Proceedings ActSections 13, 16, 13A(1)
  • Evidence ActSection 106B
  • Constitution of KenyaRight of access to justice (as discussed via the Kenya Bus case)
  • Halsbury's Laws of England4th Edition, Volume 45 para 26, 1503 (computation of damages in trespass)

Cases cited (7)

  • Mbau Saw Mills Ltd vs Attorney General & 2 Others
    (2014) eKLR
  • Bubaki Investment Co. Ltd vs National Land Commission & 2 Others
    (2015) eKLR
  • Hudson Laise Walumbwa vs Attorney General
    HCCC No. 2714 of 1987
  • Kenya Bus Service Ltd & Anor vs Minister for Transport & 2 others
    [2012] eKLR
  • Nairobi Civil Appeal no. 71 of 1997 (UR)
  • Park Towers Ltd vs John Mithamo Njika and 7 Others
    2014 eKLR
  • Banning vs Wright
    (1972) 2 ALL ER 987 at Pg 998
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over ownership of plot No. 290 Emali town and damages for trespass and demolition

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, "Joseph Mutua Zakayo v County Govt of Makueni & 9 others [2020] KEELC 2379 (KLR)", Case Analysis (2020). Not stated in the judgment as provided (ELC Suit, Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2379/eng@2020-05-28

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