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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 2855 (KLR)

Devlan Company Limited & another v City Council of Nairobi (Environment & Land Case 577 of 2009) [2025] KEELC 2855 (KLR)

Environment and Land Court
14 March 2025
MMM.D. Mwangi
3,750 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A company suing a Kenyan county over building demolitions lost because it couldn't prove who did the demolition.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of L.R 209/10172/14 and L.R No 209/10172/17, sued the Defendant (a county government) alleging that on 31st July 2009 it demolished their buildings without notice, at the instigation of one David Kinyanjui Gatimu, a senior officer of the Defendant. They sought a permanent injunction, an order compelling issuance of an occupation certificate, special damages of Kshs. 10,564,225/-, general damages for loss of income, and costs. The Defendant denied the demolitions, contending the Plaintiffs had no duly approved plans at the time of construction and had breached zoning requirements. The Defendant called no witness. The court framed two issues: whether the Plaintiffs proved the demolition was carried out by the Defendant or its agents, and whether they were entitled to the reliefs sought. Applying the burden-of-proof principles in the Moi v Mureithi and Warcham decisions, the court found that PW1 admitted in cross-examination he had no evidence the Defendant carried out the demolition, the photographs did not show the demolition, no proof showed Gatimu was a Defendant employee acting in the course of duty, and the valuation report's evidential value was eroded because its maker's death was not proved. The prayer for an occupation certificate was declined as misplaced and because mandamus had not been properly invoked, mandamus lying in judicial review or constitutional petition proceedings. The suit was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Defendant carried out the alleged demolition

Holding

Not proved; PW1 admitted he had no evidence the demolition was carried out by the Defendant, and the photographs did not show the demolition site

Reasoning

PW1 conceded in cross-examination that he had no evidence linking the demolition to the Defendant and that the photographs did not specify where the alleged demolition occurred. No evidence showed that David Gatimu was an employee of the Defendant acting in the course of duty, and he was never joined as a defendant despite being the alleged principal actor.

p. 7
02

Whether the valuation report had evidential value

Holding

Its evidential value was eroded because the maker's death, which justified production by another witness, was not proved

Reasoning

PW2 produced a report authored by Patrick Keiru on the basis that Keiru was deceased, but no evidence of death was exhibited. By the time of the alleged death PW2 was not working with Keiru, and the report also failed to describe the nature and extent of damage to materials on site.

p. 7
03

Whether the court could order issuance of an occupation certificate

Holding

No; the prayer was misplaced and mandamus was not properly invoked

Reasoning

The order sought was in substance a mandamus compelling performance of a statutory duty, which lies in judicial review or constitutional petition proceedings. Further, the plaintiffs led no evidence of compliance with approved plans, inspections and certification of compliance to justify the grant of the order.

Legal principles established

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  • The burden of proof in a civil case remains on the plaintiff on a balance of probabilities even where the defendant calls no evidence
  • An order of mandamus to compel performance of a public statutory duty issues in judicial review proceedings or a constitutional petition under Article 23, not an ordinary suit

Court orders

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  1. 1.The Plaintiffs' case against the Defendant fails and is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Evidence ActSections 107 and 108
  • Physical Planning Act (now repealed)Section 38
  • Civil Procedure Rules, 2010Order 15
  • Constitution of KenyaArticle 23

Cases cited (5)

  • Samuel Kamau Macharia and another vs Kenya Commercial Bank Limited and 2 others
    (2012) eKLR
  • Daniel Toroitich Arap Moi vs Mwangi Stephen Mureithi & ano
    (2014) eKLR
  • Anthony Francis Warcham t/a AF Warcham & 2 others vs Kenya Post Office Savings Bank
    (2004) eKLR
  • Gichinga Kibutha vs Caroline Nduku
    (2018) eKLR
  • KNEC vs Republic Ex Parte Geoffrey Gathenji
Jurisdiction invoked
Original civil jurisdiction over the claim in the amended plaint dated 17th October 2011

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, "Devlan Company Limited & another v City Council of Nairobi (Environment & Land Case 577 of 2009) [2025] KEELC 2855 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2855/eng@2025-03-14

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