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ELCDismissedNot stated in judgment (plaint dated 28/5/2012)· [2021] KEELC 3263 (KLR)

Charles Kinyua Kagio & 2 others v Attorney Generalon Behalf of the Ministry of State for Provincial and Internal Security and Minsitry of State for Defence [2021] KEELC 3263 (KLR)

Environment and Land Court
18 May 2021
2,531 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a multi-million-shilling demolition compensation claim because the owners could not prove their buildings were legally approved.

What this practically means

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Executive summary

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This suit arose from the November 2011 demolition by the Government of Kenya of structures around Moi Air Base, Eastleigh, Nairobi. The 1st and 2nd plaintiffs, son and widow respectively of the late Fredrick Kagio Kinyua, claimed special damages of Kshs 54,404,000 and Kshs 196,960,000 respectively, plus general and aggravated damages, against the Attorney General sued on behalf of the Ministry of State for Provincial and Internal Security and the Ministry of State for Defence. The 3rd plaintiff's claim was withdrawn on 7/12/2017 upon his death. The defendant denied liability, contending that the structures were illegal, contrary to public policy and a threat to aviation safety and national security. The court framed five issues. It found, on the evidence of DW1 Col Apollo Aloka and PW1, that the demolitions were carried out by a Multi-Agency Task Force under the armed command of personnel from the two Ministries, so the Attorney General was properly sued. However, the plaintiffs failed to prove that their structures were duly approved and lawfully existed: they produced no City Council approvals under the Physical Planning Act, no prior written approvals required by Special Conditions in the 1st plaintiff's title, and no approvals for change of user or alterations as required by the 2nd plaintiff's leases. The court declined to rest on the repealed Civil Aviation Act limb because the Attorney General did not exhibit the gazette notice required under Section 9 of Cap 394. Liability was therefore not established and no reliefs were available. Notably, costs were not awarded to the Attorney General because regulatory failures by state agencies contributed to the loss. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Participation of the two Ministries in the demolitions

Holding

The demolitions were carried out by a Multi-Agency Task Force under the armed command of personnel from the two Ministries, and the Attorney General was properly sued on their behalf.

Reasoning

DW1, Col Apollo Aloka, confirmed in evidence-in-chief that the multi-storey buildings on the three plots were removed on 22/11/2011 at the instance of a Multi-Agency Task Force of the Government of Kenya because they posed grave risk to flights into and out of Moi Air Base. PW1 witnessed armed security men from Kenya Airforce, Regular and Administration Police cordoning off the area during the demolitions.

p. 3
02

Lawfulness of the demolished structures

Holding

The plaintiffs did not discharge their burden of proving that the structures were duly approved and lawfully existed under the applicable legal frameworks and regulations.

Reasoning

The plaintiffs tendered no evidence of City Council approvals under the Physical Planning Act. The 1st plaintiff's title contained Special Conditions requiring prior written approvals from the Commissioner of Lands and the Local Authority and restricting user to one private dwelling house; no approvals or change of user were exhibited. The 2nd plaintiff's leases prohibited alterations without written Council approval; none was exhibited.

p. 3
03

Liability of the defendant

Holding

The defendant was not liable because the plaintiffs failed to demonstrate that the demolished structures were duly approved, lawfully existed, and should not have been removed.

Reasoning

For liability to attach to the Attorney General, the plaintiffs had to show the structures were lawful and should not have been removed. Having failed to prove approvals and lawfulness, no basis existed to hold the Attorney-General liable, and consequently none of the reliefs sought was available.

p. 4
04

Costs

Holding

Although the suit was dismissed, costs were not awarded to the Attorney General because regulatory failures by state agencies contributed to the situation.

Reasoning

The court observed that the suit resulted from failures of regulatory state agencies, without whose vigilance the structures would not have been erected. The plaintiffs suffered partly from that state of affairs, justifying the denial of costs to the defendant.

p. 4

Legal principles established

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  • It is the burden of a plaintiff claiming damages for demolition to prove, under Section 107 of the Evidence Act, that the demolished structures were duly approved and lawfully existed.
  • The State, asserting illegality of structures under the repealed Civil Aviation Act, must produce the gazette notice declaring the area; absent that, the court will not rest a finding on that limb of the defence.

Court orders

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  1. 1.The 1st and 2nd plaintiffs' suit was dismissed for lack of merit
  2. 2.Confirmation recorded that the 3rd plaintiff's suit was withdrawn on 7/12/2017
  3. 3.Each party to bear their respective costs of the suit

Authorities

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Legislation

  • Physical Planning ActAct of 1996 (with Regulations thereunder)
  • Evidence ActSection 107
  • Civil Aviation Act (Repealed)Section 9 [Cap 394]
  • International Civil Aviation ConventionRegulation of Flight Airspace
Jurisdiction invoked
Original civil suit by plaint (claim in tort for demolition of buildings); no specific constitutional or statutory jurisdictional provision invoked in the judgment.

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, "Charles Kinyua Kagio & 2 others v Attorney Generalon Behalf of the Ministry of State for Provincial and Internal Security and Minsitry of State for Defence [2021] KEELC 3263 (KLR)", Case Analysis (2021). Not stated in judgment (plaint dated 28/5/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3263/eng@2021-05-18

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