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ELCPartially AllowedEnvironment & Land Petition 23 of 2017· [2022] KEELC 15027 (KLR)

Daniel M. Mwangi Gathu v County Government of Nairobi & 6 others

Environment and Land Court
24 November 2022
MMM.D. Mwangi
6,644 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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A Nairobi homeowner won Kshs 14 million compensation for a neighbour's reckless seven-storey construction, but the court barred him from re-litigating land issues already decided in an earlier case.

What this practically means

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Executive summary

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The Petitioner, registered owner of House No. K20 on L.R. No. 209/6989/64 in Jamhuri Estate, Nairobi, petitioned over the creation of L.R. No. 209/6989/159 from reserved open spaces (L.R. 209/6989/R) and the construction of a seven-storey block of flats on it by the 4th and 5th Respondents, who acquired the lease from Resurge Investment Limited. He sought declarations that the sub-lease was null and void, a mandatory injunction to demolish the building, compensation of Kshs 14,000,000/-, and orders against NEMA. The 1st, 3rd and 6th Respondents filed replying affidavits; NEMA denied ever issuing an EIA licence and supported stopping the construction; the 2nd Respondent filed grounds of opposition; the 4th, 5th and 7th Respondents did not respond. The court held that most of the Petitioner's prayers were barred by res judicata, having been determined in HCCC 1390 of 1998 (consolidated with ELC 1312 of 1998) by Bor J on 6th December 2018, and that a party is bound by its pleadings, so the demolition prayer founded on the reserve-land allegation could not be granted on a different basis. The claim against NEMA failed for want of proof and because the court would not perpetually bar a statutory body from its mandate. However, the Petitioner proved violation of his property rights by the 1st, 4th and 5th Respondents through the reckless construction, and was awarded Kshs 14,000,000/- jointly and severally with interest, plus costs against those respondents; the case against the 2nd, 3rd and 7th Respondents was disallowed with no orders as to costs given the public interest nature of the litigation.

Key legal issues

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01

Res judicata vis-à-vis the earlier Jamhuri Estate suit

Holding

Issues already determined in HCCC 1390 of 1998 (consolidated with ELC 1312 of 1998) cannot be re-litigated; the court restricted itself to the compensation claim and the NEMA prayers

Reasoning

The court applied the elements of res judicata from IEBC v Maina Kiai: same issue, same parties or those claiming under them, same title, heard and finally determined by a competent court. The Petitioner, a resident of Jamhuri Estate, was substantially covered by the association's earlier suit; re-determining those issues would amount to sitting on appeal over a judge of equal status.

p. 8
02

Whether the Petitioner proved violations by NEMA

Holding

No - the Petitioner produced no evidence that NEMA issued an EIA licence or approval; the court declined to perpetually bar NEMA from its statutory mandate

Reasoning

NEMA's Director of Compliance swore that no EIA licence was ever issued and that NEMA declined to process one after receiving complaints. The Petitioner filed no further affidavit or evidence to contradict this. Further, EMCA provides mechanisms for grievances against NEMA's exercise of statutory duty, so a perpetual injunction would be improper.

p. 10
03

Compensation for damage and diminution in value of the Petitioner's house

Holding

Petitioner proved violation of his property rights by the 1st, 4th & 5th Respondents and was awarded Kshs 14,000,000/- jointly and severally

Reasoning

Evidence including the valuer's testimony, electronic evidence and the Deputy Registrar's site visit report established reckless construction: damage to roofing and rafters, a rock tearing through the roof, blocked natural light, water dripping into the compound, destabilised walls and violated privacy. The 4th & 5th Respondents acted with the acquiescence of the 1st Respondent, which approved the development.

Legal principles established

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  • A party is bound by his pleadings and cannot raise a different or fresh case without due amendment; the court is equally bound by the pleadings
  • The legal burden of proof rests on the party who alleges
  • Adding or subtracting litigants in a suit related to a previous suit does not circumvent res judicata

Court orders

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  1. 1.Petition allowed as against the 1st, 4th and 5th Respondents only
  2. 2.Petitioner awarded Kshs 14,000,000/- jointly and severally against the 1st, 4th & 5th Respondents as compensation for damage and diminution of value of his house
  3. 3.The Kshs 14,000,000/- award to attract interest at court rates from the date of judgment until payment in full
  4. 4.Costs of the petition awarded to the Petitioner against the 1st, 4th & 5th Respondents jointly and severally
  5. 5.Case against the 2nd, 3rd & 7th Respondents disallowed with no orders as to costs

Authorities

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Legislation

  • Survey ActCap 299
  • Physical Planning ActCap 286 (now repealed)
  • Environment Management and Co-ordination Act (EMCA)not specified
  • Constitution of KenyaArticle 40; Article 47

Cases cited (8)

  • Diocese of Eldoret Trustees (Registered) v Attorney General (on behalf of the Principal Secretary Treasury) & Another
    (2020) eKLR

    Caution against litigants metamorphosing to circumvent res judicata by adding or subtracting litigants

  • Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    (2017) eKLR

    Elements constituting res judicata

  • Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 others
    (2014) eKLR

    Parties in litigation are bound by their pleadings

  • Malawi Railways Ltd v Nyasulu
    (1998) MWSC 3

    Quoted Sir Jacob's article on the importance of pleadings; parties bound by their pleadings

  • Adetoun Oladeji (NIG) v Nigeria Breweries PLC
    SC91/2002

    Parties not allowed to depart from their pleadings

  • Raila Odinga & Another v IEBC & 2 others
    (2017) eKLR

    No party should travel beyond its pleadings; issues arise only on material propositions affirmed and denied

  • Eastern Produce (k) Ltd v Christopher Atiado Osiro
    (2006)

    Onus of proof is on he who alleges

  • Emma Murai & others v Nairobi City Council
    Nairobi HCCC 1390 of 1998 (consolidated with ELC 1312 of 1998)

    Earlier final determination of the Jamhuri Estate reserve-land issues, founding the res judicata bar

Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court (petition transferred from the High Court to this court)

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, "Daniel M. Mwangi Gathu v County Government of Nairobi & 6 others", Case Analysis (2022). Environment & Land Petition 23 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15027/eng@2022-11-24

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