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ELCPartially AllowedEnvironment & Land Case 26 of 2021· [2023] KEELC 15865 (KLR)

Farid Faraj Awadh Bamaftah v County Government of Kilifi

Environment and Land Court of Kenya
1 March 2023
6,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a property owner Kshs. 5 million after Kilifi County demolished his wall on an illegal 7-day notice instead of the required 90 days.

What this practically means

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Executive summary

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The plaintiff, registered owner of a beach property in Mtwapa, rebuilt a boundary wall that had been demolished by hooligans in 2019, without obtaining development permission from the County Government of Kilifi. The County issued a 7-day enforcement notice dated 3 February 2021 under Section 57 of the Physical and Land Use Planning Act, 2019, and demolished the wall on 12 February 2021, after the plaintiff had obtained interim injunctive orders on 11 February 2021. The plaintiff sued for a declaration of ownership, a permanent injunction, Kshs. 4,000,000/= (the valued cost of the wall), and general damages for trespass. The County defended the notice as lawful. The court framed two issues: the legality of the notice and entitlement to damages without approval. Holding that Sections 57(3) and 72(3) must be read together, it found that a lawful notice must allow 90 days for restoration and 14 days for appeal to the Liaison Committee; the 7-day notice was therefore illegal, and the demolition before expiry of the appeal period condemned the developer unheard and locked him out of his appeal. On damages, the court distinguished conflicting authorities and held that where the notice is illegal, a developer is entitled to damages unless the development is a risk; the wall was innocent and interfered with nobody. It awarded Kshs. 4,000,000/= based on an unchallenged valuation, and Kshs. 1,000,000/= general damages for trespass given the dubious, undocumented demolition. The declaration of ownership and permanent injunction were refused as unnecessary, and exemplary damages were denied as unpleaded. The plaintiff received costs with interest.

Key legal issues

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01

Legality of the 7-day enforcement notice under Sections 57 and 72 of the Physical and Land Use Planning Act, 2019

Holding

The 7-day notice was illegal as the statute requires a 90-day period for restoration and 14 days for appeal to the Liaison Committee

Reasoning

Sections 57 and 72 must be read together. Section 57(3) allows a developer 90 days to restore land, and the County may not enforce before lapse of that period. Section 72(3) grants 14 days to appeal. The 7-day notice conformed to neither period and deprived the developer of the opportunity to regularise the development or appeal, condemning him unheard.

p. 8
02

Whether the plaintiff could bypass appeal to the Liaison Committee

Holding

Yes - the defendant demolished before the 14-day appeal window lapsed, mooting any appeal

Reasoning

The defendant argued the plaintiff ought to have appealed to the Liaison Committee. But the wall was demolished on 12 February 2021, before expiry of the 14-day appeal period, locking the plaintiff out of that remedy. The court distinguished Mwangi Ruguru where the developer had not exhausted the appeal route.

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Entitlement to damages where the development lacked approval

Holding

Damages for the value of the demolished wall and general damages for trespass were awarded despite lack of approval

Reasoning

Conflicting authorities (Jamii Telecommunications; Anthony Njoroge) were considered. The court held that where proper notice is not issued, the developer is condemned unheard; the legality of the development can only be determined through proper statutory processes. Since the wall was innocent and interfered with nobody, the plaintiff was entitled to the value of the wall and general damages for trespass.

p. 10
04

Quantum of damages

Holding

Kshs. 4,000,000/= for the wall per the uncontroverted valuation, and Kshs. 1,000,000/= general damages for trespass

Reasoning

The valuation by a registered valuer (produced by an assistant since the valuer had died) was unchallenged by any contrary valuation; the wrong date on the report was a curiable mistake. General damages of Kshs. 1,000,000/= were fixed given the dubious manner of the demolition, absence of documentation and lack of good faith.

Legal principles established

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  • An enforcement notice giving a developer less than 90 days to restore land under Section 57(3) of the Physical and Land Use Planning Act is illegal
  • An enforcement notice allowing less than the 14 days prescribed by Section 72(3) for appeal to the Liaison Committee is illegal
  • A developer served with an illegal notice is entitled to damages for the value of the demolished development unless the development poses a risk
  • Entry onto and demolition of property before lapse of the statutory 90-day notice period constitutes trespass

Court orders

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  1. 1.Award of Kshs. 4,000,000/= to the plaintiff for the value of the demolished wall, with interest at court rates from 12 February 2021 until payment in full
  2. 2.Award of Kshs. 1,000,000/= as general damages for trespass, with interest at court rates from the date of judgment until payment in full
  3. 3.Costs of the suit to the plaintiff, to attract interest from the date of judgment

Authorities

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Legislation

  • Physical and Land Use Planning ActSection 57
  • Physical and Land Use Planning ActSection 72
  • Fair Administrative Action ActSection 4(3)(a)
  • Constitution of KenyaArticle 40

Cases cited (4)

  • Republic vs The County Government of Kwale Ex-parte Leisure Lodges Ltd
    (2018) eKLR

    Supporting plaintiff's submissions on the illegality of non-compliant enforcement notices

  • Ephantus Mwangi and 12 others vs The Director of City Planning Department (City Council of Nairobi) & another
    (2012) eKLR

    Defendant's submission that a developer should appeal to the Liaison Committee before court

  • Jamii Telecommunication Limited vs County Government of Uasin Gishu
    Eldoret ELC Petition No. 6 of 2018, (2020) eKLR

    Defendant argued no general damages where development unauthorised; court noted it awarded only damages for rights infringement

  • Anthony Njoroge & 2 others vs County Government of Nairobi & another
    (2020) eKLR

    Defendant argued no general damages for unapproved development; court noted it limited award to value of destroyed property

Jurisdiction invoked
Article 162(2)(b) of the Constitution read with the Environment and Land Court Act conferring jurisdiction on the ELC over land and environmental disputes

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, "Farid Faraj Awadh Bamaftah v County Government of Kilifi", Case Analysis (2023). Environment & Land Case 26 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15865/eng@2023-03-01

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