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ELCAllowedNot stated in judgment (Plaint dated 17th November, 2022)· [2024] KEELC 5801 (KLR)

Nyongesa v County Government of Nakuru & another (Environment & Land Case 66 of 2022) [2024] KEELC 5801 (KLR)

Environment and Land Court
9 August 2024
AOA.O. Ombwayo
10,274 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Nakuru County to pay a developer over Kshs. 35 million after demolishing his building without following the legally required notice procedure.

What this practically means

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Executive summary

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Peter Nyongesa sued the County Government of Nakuru and the national government after his partially constructed four/five-storey apartment building on plot 23/735 Nakuru was demolished on 27th March, 2021 following enforcement notices and a demolition notice. He sought declarations that the demolition violated Articles 40, 22(3), 47, 48, 50, 27 and 29(d) of the Constitution, together with special, general and exemplary damages and costs. The defendants contended the building was structurally unsafe, that the plaintiff ignored professional advice and continued construction, and that the county acted within its exclusive constitutional mandate over county planning and development; the 1st Defendant also argued the suit was premature under the doctrine of exhaustion. The plaintiff's experts testified that the building was rectifiable through retrofitting and that compliance with the notices was ongoing. The court framed three issues: lawfulness of the demolition, entitlement to reliefs, and costs. It found that although the development had structural challenges, the plaintiff complied with the approval conditions, some belatedly, and that the county frustrated the remediation process with repeated stoppages and document demands. The notices failed to specify compliance periods and the statutory 14-day internal appeal right under section 72 of the Physical & Land Use Act, 2019, and the 7-day notice was unlawful; the demolition was premature, unfair, arbitrary and unconstitutional. The doctrine of exhaustion did not apply as the demolition caught the plaintiff off-guard. Judgment was entered for the plaintiff with a declaration of rights violations, general and exemplary damages of Kshs. 2,000,000 with interest, special damages of Kshs. 33,131,637, and costs to the defendants.

Key legal issues

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01

Lawfulness of the demolition notice and enforcement notices

Holding

The notices were premature, unfair and unlawful for non-compliance with section 72 of the Physical & Land Use Act, 2019 and the demolition was arbitrary

Reasoning

The court found the notices unclear on timelines, the 7-day notice contrary to the statutory 14-day internal appeal provision, and demolition effected while retrofitting was ongoing. The process was frustrated by the 1st Defendant's repeated stoppages and document requests, denying the plaintiff sufficient time to remedy, amounting to procedural impropriety violating Articles 40, 47 and related rights.

p. 15
02

Compliance with the conditions of the 5th November, 2020 approval

Holding

The plaintiff complied with the disputed conditions, albeit in some instances late, and the delay was not inordinate

Reasoning

The court examined the four disputed conditions regarding NEMA/NCA clearance, submission of integrity reports, structural details and NBI recommendations. It found documentary evidence of compliance, and held that the 1st Defendant frustrated the process by frequently stopping construction and requesting documents.

p. 15
03

Entitlement to damages

Holding

The plaintiff was awarded exemplary damages for constitutional violation and special damages as pleaded and proved

Reasoning

Having established breach of fundamental rights, the court applied the Rookes v Barnard categories via Godfrey Julius Ndumba Mbogori, awarding Kshs. 2,000,000 exemplary damages. Special damages of Kshs. 33,131,637 were proved by receipts that the Defendants did not dispute.

p. 16

Legal principles established

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  • A demolition notice must comply with section 72 of the Physical & Land Use Act, 2019 by specifying the compliance period and the 14-day right of internal appeal; failure renders the demolition premature, unfair and unlawful
  • Special damages must be specifically pleaded and proved with certainty and particularity
  • Exemplary damages are available where government action is oppressive, arbitrary or unconstitutional
  • The doctrine of exhaustion does not apply where demolition occurs while the plaintiff is still complying, catching them off-guard

Court orders

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  1. 1.A declaration that the enforcement notice and demolition order dated 19th March, 2021 issued by the defendants was an arbitrary deprivation of the plaintiff's fundamental rights under Articles 40, 22(3), 47, 48, 50, 27 and 29(d) of the Constitution
  2. 2.General and Exemplary damages of Kshs. 2,000,000 with interest at court rates from the date of filing suit
  3. 3.Special damages of Kshs. 33,131,637
  4. 4.Costs of the suit to be borne by the Defendants
Jurisdiction invoked
Article 22 & 23 of the Constitution (enforcement of Bill of Rights) and Article 165(3)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyongesa v County Government of Nakuru & another (Environment & Land Case 66 of 2022) [2024] KEELC 5801 (KLR)", Case Analysis (2024). Not stated in judgment (Plaint dated 17th November, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5801/eng@2024-08-09

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