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ELCPartially AllowedPetition dated January 11, 2019 (Nairobi)

Kental Enterprises Ltd v Attorney General & 4 others (Petition 2 of 2019) [2025] KEELC 1470 (KLR)

Environment and Land Court
24 March 2025
29,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~118 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered the government to pay Kental Enterprises Kshs 2.06 billion for demolishing its Westlands building without notice or due process.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi (Oguttu Mboya, J) allowed in part a petition by Kental Enterprises Limited arising from the demolition of Ukay Mall on LR Nos 209/11307 and 209/11308 (and claims over LR No 209/12829) by the Multi-Sectoral Agency Consultative Committee on 10 August 2018. The court first held that the petition was not barred by the doctrine of exhaustion or constitutional avoidance: the issues were constitutional, fell outside the liaison committee's mandate under the repealed Physical Planning Act, and the enforcement notice underlying that argument had been superseded and the building already demolished. Second, it held the petitioner was the lawful proprietor: the titles had previously been vindicated by Majanja J who declared the gazette notice revoking them unconstitutional; no respondent impugned the titles by cross-petition; and the respondents' own survey witness confirmed the plots were not on a road reserve. Third, the court found the demolition violated articles 10, 27, 40, 47 and 50 of the Constitution: the enforcement notice related only to illegal alterations, the riparian reserve was never demarcated by the Water Resources Authority, canalization approvals had been issued by NEMA and WRA, and no notice of demolition was given. On remedies, the court entered judgment against the 1st, 2nd, 3rd and 5th respondents jointly and/or severally for Kshs 2,013,500,000 as compensation, plus Kshs 50,000,000 exemplary damages, with interest at 14% per annum, issued the declaratory orders sought, relieved the petitioner of land rent, rates and taxes from the demolition date, and awarded costs. The claim for loss of business of Kshs 114,000,000 was refused as unpleaded and unsupported by a signed report, and the 15% statutory disturbance allowance was disallowed. The petitioner must surrender its titles upon receipt of compensation.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition is barred by the doctrine of exhaustion and constitutional avoidance or otherwise
  2. 2.Whether the petitioner was the lawful and registered proprietor of the suit properties and thus entitled to protection under the Constitution and statute
  3. 3.Whether the petitioner's fundamental rights and freedoms as pertains to the suit properties were violated, breached and/or infringed upon by the respondents or otherwise
  4. 4.What reliefs, if any, ought to be granted

Key legal issues

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01

Doctrine of exhaustion and constitutional avoidance

Holding

The Petition was not barred; the issues raised were constitutional and fell outside the liaison committee's mandate, and the enforcement notice had ceased to exist once the building was demolished

Reasoning

Relying on the Supreme Court's decision in Nicholus v Attorney General, the court held that alleged constitutional violations fall within the original jurisdiction of the ELC and that alternative remedies do not bar constitutional relief where inadequate. The liaison committee under the repealed Physical Planning Act had no jurisdiction over constitutional claims, and approaching it after the demolition would have been futile since the enforcement notice underlying the exhaustion argument had been superseded and the building destroyed.

p. 39
02

Validity of the petitioner's title to the suit properties

Holding

The petitioner was the lawful proprietor entitled to constitutional protection; its titles had never been impugned in accordance with law and the road-reserve allegation failed

Reasoning

A prior judgment by Majanja J had declared the gazette notice revoking the petitioner's titles unconstitutional, and that decision operated in rem. No respondent filed a cross-petition challenging the titles. The 1st and 4th respondents' own survey witness (RW2) confirmed the suit plots were validly surveyed, not recalled, and not on a road reserve. Parties are bound by their pleadings, so the road-reserve contention could not be raised by witness statement alone.

p. 49
03

Violation of fundamental rights by the demolition

Holding

The demolition of Ukay Mall by the Multi-Sectoral Agency Consultative Committee on 10 August 2018 violated articles 10, 27, 40, 47 and 50 of the Constitution

Reasoning

The enforcement notice of 23 May 2018 concerned only illegal alterations, not demolition, and was superseded by the county's letter of 6 July 2018 which introduced new riparian-reserve allegations contingent on determination by NEMA and WRA. WRA had never marked or demarcated the riparian reserve, no enforcement notice or complaint was ever issued by WRA, and both NEMA and WRA had approved the canalization. No notice of the demolition was ever given, hence the action was arbitrary, whimsical, callous and oppressive.

p. 4
04

Quantum of compensation and exemplary damages

Holding

Compensation of Kshs 2,013,500,000 awarded based on the uncontroverted valuation report, plus Kshs 50,000,000 exemplary damages

Reasoning

The valuation report of PW7 was not contradicted by any contrary expert evidence, and expert evidence can only be challenged by another expert. The 15% disturbance allowance was disallowed as the case did not involve compulsory acquisition. Exemplary damages were warranted because state agents carried out the demolition in the face of articles 1 and 10 of the Constitution; the award was an award at large guided by Court of Appeal and Supreme Court precedent.

p. 57

Legal principles established

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  • A registered proprietor whose certificate of title has not been impugned or invalidated through due process is entitled to constitutional protection of property rights
  • Where a suit primarily seeks to enforce fundamental rights and freedoms and the constitutional violations are not mere bootstraps, it is not barred by the doctrine of exhaustion
  • Before adverse administrative action against a citizen, due notice and fair hearing are constitutional imperatives
  • In the absence of a contrary valuation report, the valuation tendered by the petitioner's expert suffices for assessment of compensation

Court orders

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  1. 1.Declaration that the demolition of the petitioner's property on LR No 209/11307 and LR No 209/11308 violated the petitioner's legitimate expectation and constitutional rights under article 10 of the Constitution
  2. 2.Declaration that the petitioner's rights under article 40 of the Constitution were violated by the State following the demolition of 10th August 2018
  3. 3.Declaration that the demolition was undertaken without due process, violating article 47 of the Constitution
  4. 4.Declaration that the petitioner is not responsible for paying any land rent, rates and taxes from the date of demolition of LR No 209/11307, LR No 209/11308 and LR No 209/12289
  5. 5.Declaration that the respondents, their agents and the Government of Kenya arbitrarily and compulsorily deprived the petitioner of its properties on LR No 209/11307, LR No 209/11308 and LR No 209/12829
  6. 6.Judgment entered for the petitioner against the 1st, 2nd, 3rd and 5th respondents jointly and/or severally in the sum of Kenya Shillings 2,013,500,000 as compensation for the value of the suit properties
  7. 7.Exemplary damages awarded in the sum of Kshs 50,000,000
  8. 8.Upon receipt of compensation, the petitioner to surrender the Certificates of Title to the Chief Land Registrar for cancellation to avoid unjust enrichment
  9. 9.Interest on the compensation award at court rates (14% per annum) from 22nd January 2019 (date of filing of Petition)
  10. 10.Interest on the exemplary damages award at court rates (14% per annum) from the date of Judgment
  11. 11.Costs of the suit awarded to the petitioner against the 1st, 2nd, 3rd and 5th respondents jointly and/or severally
  12. 12.Any other reliefs not expressly granted denied

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Court Act

Relief refused

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Claim for loss of business of Kshs 114,000,000

The financial report tendered was unsigned and thus devoid of probative value, and the claim was not pleaded

p. 58

The 15% statutory disturbance allowance component of the valuation

The dispute does not concern compulsory acquisition, so the disturbance allowance is neither claimable nor payable

p. 57

Compensation for the 4th respondent (National Youth Service)

The court found the demolition was undertaken with the involvement of all respondents save the 4th, and judgment was entered only against the 1st, 2nd, 3rd and 5th respondents

Any other reliefs not expressly granted

Reserved reliefs denied in the final orders

p. 60

Costs

Costs of the suit awarded to the petitioner as against the 1st, 2nd, 3rd and 5th respondents jointly and/or severally; costs to be agreed upon and in default to be taxed in the conventional manner

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Judgment be and is hereby entered for the petitioner, against the 1st, 2nd, 3rd and 5th Respondents, either jointly and /or severally in the sum of Kenya Shillings 2,013,500,000 only being compensation for the values of the suit properties
p. 60Final orders - compensation award
Exemplary damages be and are hereby awarded in the sum of Kes 50, 000, 000 only
p. 60Final orders - exemplary damages
The actions complained of were indeed arbitrary, whimsical, callous, barbaric and oppressive. Such acts, nay omission[s] must not be allowed to rear its ugly head under the current Constitutional dispensation
p. 55Characterisation of the demolition
The said Enforcement notice did not relate to the demolition of the building on the suit property and thus same cannot be relied upon to support the unconstitutional and barbaric demolition
p. 53Enforcement notice could not authorise demolition
Costs of the suit be and are hereby awarded to the petitioner as against the 1st, 2nd, 3rd and 5th Defendants, jointly and/or severally
p. 60Final orders - costs
Subject to receipt of the Compensation in term[s] of Clause [vi] above, the petitioner shall surrender the Certificate[s] of Title to the Chief Land Registrar for purposes of cancellation to avoid unjust enrichment
p. 5Final orders - surrender of titles
It is not lost on this Court that there is nothing known as constructive compulsory acquisition
p. 57No constructive compulsory acquisition

Issues in the judgment

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material

Internal inconsistency on liability of the 4th respondent: the court found the demolition was undertaken with the involvement of all respondents save the 4th (National Youth Service), yet the 4th respondent had filed joint pleadings and evidence with the 1st respondent through the Attorney General

material

The judgment states the petitioner did not plead the claim for loss of business, although the Further amended Petition expressly sought alternative judgment sums including interests and losses

minor

The costs order refers to 'Defendants' although the proceedings are a petition with respondents

minor

The EIA licence is inconsistently dated in the judgment, described as issued on 25 September 2017 in one passage and 25 September 2018 in another

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kental Enterprises Ltd v Attorney General & 4 others (Petition 2 of 2019) [2025] KEELC 1470 (KLR)", Case Analysis (2025). Petition dated January 11, 2019 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1470/eng@2025-03-24

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