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ELCPartially AllowedELC Suit No. 1316 of 2015· [2021] KEELC 3788 (KLR)

Peninah Njeri Githathia & another (Suing as the Legal Representatives of the Estate of Hezron Githathia (Deceased) v Nairobi City County [2021] KEELC 3788 (KLR)

Environment and Land Court
4 March 2021
KBK. BOR
3,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, legal representatives of the estate of the late Hezron Githathia Mwangi, claimed that the Defendant (Nairobi City County) allocated him Plot 1/270 in Nairobi by letter of allotment dated 1/12/1988, later issued a lease dated 4/6/1999, and approved construction of a block of apartments. They alleged that County officials forcefully evicted tenants in February 2015 and vandalised and demolished the building on 14/10/2015 and 14/11/2015, seeking a permanent injunction, special damages of Kshs. 75,560,500/=, general and exemplary damages, costs and interest. The Defendant denied the allotment's validity, asserting the land was trust land under Article 62(2) of the Constitution, and counterclaimed for a declaration of its trust duty, damages for trespass and mesne profits and an injunction. The Defendant's counterclaim was dismissed after it failed to proceed with its evidence. On the claim, the court found the allotment documents irregular: the deposit paid exceeded the allotment price with no refund; the lease lacked a term, registration details and a granted head lease, and contradicted the earlier beacon certificate. The Plaintiffs failed to prove a valid lease or that the apartment development conformed to the lease's 'house' use restriction. However, the court found the Defendant's agents demolished the Plaintiffs' structure without notice. It declined the orders sought in the Amended Plaint but awarded general damages of Kshs. 10,000,000/= against the Defendant, plus costs and interest. Judgment delivered virtually by K. Bor, J on 4 March 2021.

Key legal issues

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01

Whether the late Hezron Mwangi held a valid title/lease over the Suit Property

Holding

The Plaintiffs failed to prove a valid lease or title

Reasoning

The court scrutinised the documentary evidence: the receipt was for a 'plot quotation deposit' exceeding the allotment price with no refund of the difference; the lease lacked a term, registration details, referred to a head lease never granted, and stated the land had not been surveyed despite an earlier beacon certificate. These irregularities meant the Plaintiffs did not discharge the burden of proving lawful allocation on a balance of probabilities.

p. 3
02

Whether the development conformed to the lease relied upon

Holding

No evidence showed conformity; the apartments did not fit the 'house' use permitted by the lease

Reasoning

The lease provided the plot be used strictly for a house. The apartment block had many units on three floors and approved plans predated the lease and showed shops. The Plaintiffs led no evidence of conformity, undermining the special damages claim pegged to the value of the building.

p. 3
03

Whether the Defendant was liable for demolishing the structure without notice

Holding

The Defendant's agents demolished the structure without notice and general damages of Kshs. 10,000,000/= were awarded

Reasoning

Despite failing on title, the Plaintiffs proved through their witnesses that County officials threatened and then demolished the building with bulldozers between 14/10/2015 and 14/11/2015 without any notice. The court held that compensation was due for this unlawful act and quantified damages at Kshs. 10,000,000/=.

p. 3

Legal principles established

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  • The burden of proving lawful allocation and approval of development lies on the plaintiff, on a balance of probabilities
  • A party cannot recover damages for the value of a development that did not conform to the terms of the lease relied upon
  • Demolition of a person's development without notice is unlawful and attracts compensatory damages even where title is unproved

Court orders

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  1. 1.The orders sought in the Amended Plaint dated 12/11/2018 are declined
  2. 2.General damages of Kshs. 10,000,000/= awarded against the Defendant
  3. 3.Costs of the suit to the Plaintiffs plus interest

Authorities

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Legislation

  • Constitution of KenyaArticle 62(2)
  • Constitution of KenyaArticle 40
  • Former Constitution of KenyaSection 116
  • Land Adjudication ActSection 3
  • Land Registration ActSection 44
  • County Attorney Actnot specified (came into effect 27/7/2020)
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Ravji Karsan Sanghani v Peter Gakunu
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly stated 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, "Peninah Njeri Githathia & another (Suing as the Legal Representatives of the Estate of Hezron Githathia (Deceased) v Nairobi City County [2021] KEELC 3788 (KLR)", Case Analysis (2021). ELC Suit No. 1316 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3788/eng@2021-03-04

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