Farid Faraj Awadh Bamaftah v County Government of Kilifi
The bottom line
#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
#Executive summary
#Key legal issues
#Legality of the 7-day enforcement notice under Sections 57 and 72 of the Physical and Land Use Planning Act, 2019
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
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.
Whether the plaintiff could bypass appeal to the Liaison Committee
Yes - the defendant demolished before the 14-day appeal window lapsed, mooting any appeal
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.
Entitlement to damages where the development lacked approval
Damages for the value of the demolished wall and general damages for trespass were awarded despite lack of approval
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.
Quantum of damages
Kshs. 4,000,000/= for the wall per the uncontroverted valuation, and Kshs. 1,000,000/= general damages for trespass
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
#- 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
#- 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.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.Costs of the suit to the plaintiff, to attract interest from the date of judgment
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.