Esther Mukai Mwendwa & another v Nairobi City County [2020] [2020] KEELC 3838 (KLR)
The bottom line
#The Environment and Land Court dismissed a Kshs. 42 million demolition claim because the plaintiffs couldn't prove they owned or occupied the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved their interest in the Suit Property and the Defendant's liability for trespass, demolition and contempt of court orders
The Plaintiffs failed to prove their claim; the titles produced were in third parties' names, no evidence of a lease between the Plaintiffs was led, and the court order relied on was issued in a suit to which the Defendant was not a party.
The 1st Plaintiff claimed beneficial ownership and adverse possession, but the titles produced bore the names of Joseph Wanyoike Kiarie and George Kuria Mwaura. The court order produced related to ELC Case No. 472 of 2009, an adverse possession claim against the estate of Joseph Wanyoike Kiarie, to which the Defendant was not party and of which there was no proof of service. The witnesses gave no evidence of the lease between the Plaintiffs. Photographic evidence was undated and the assessment unsupported by original documents.
Whether the claim for special damages of Kshs. 14,191,300/= and loss of business of Kshs. 28,800,000/= was proved
The special damages and loss of business were not proved; the assessment was prepared by persons who did not witness the demolition and the receipts and invoices produced were copies that did not support the claim.
Mr. Mwiti of Wisemen Limited produced an assessor's report containing receipts and invoices in the 2nd Plaintiff's name, but he did not participate in its preparation, the assessors visited after the demolition, and there were no copies of original receipts. The Defendant also pointed out that the plumbing and drainage valuation was undated and unsigned. The court found the documentary evidence insufficient to establish either head of damages.
Legal principles established
#- A party who alleges demolition and damage by a public body must prove its interest in the land and that the body was bound by any court order it allegedly violated; a claimant cannot rely on orders made in proceedings to which the alleged violator was not a party.
Court orders
#- 1.The suit is dismissed
- 2.Costs of the suit awarded to the Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land (suit property LR 209/9943, Nairobi)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Mukai Mwendwa & another v Nairobi City County [2020] [2020] KEELC 3838 (KLR)", Case Analysis (2020). ELC Case No. 1039 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3838/eng@2020-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.