Kenslopic Hydro Engineers Limited & another v Nairobi City County

else other than the Plaintis or in any way interfering with the Plaintis’ ownership and possession of Plots No’s 10,12,13,22 and 24 of Section III Eastleigh (former sewerage depot), Nairobi. c. An injunction restraining the Defendant by itself, or through its agents, servants and or employees from trespassing, destroying, wasting, or in any way dealing with the Plainti’s Plots No’s 12 and 13 of Section III Eastleigh (former sewerage depot), Nairobi together with the buildings and improvements erected and being thereon. d. General damages for trespass and special damages to be quantied. e. Ksh.26,606,335.28. f. Costs of this suit. g. Interest on (c) and (d) above. h. Any other or further relief this Honourable Court may deem t and just to grant. 3. In opposition, the Defendant led a statement of defence, denying allegations levelled against it in the plaint. It also denied approving building plans, denied liability of the alleged loss and contended that a Letter of Allotment does not confer ownership. 4. The suit was heard by viva voce evidence. The Plainti ’s Evidence 5. PW1 was Susan Wanjiku, the managing director of both Plaintis. She adopted her adavit and further adavit in evidence. She insisted that Plot No’s 10, 12, 13, 22 and 24 were allocated to the Plaintis vide the Defendant’s predecessor’s Letters of Allotment and that they paid Stand Premium thereof as well as other dues and lease documents were executed in their favour. Further, that the Plaintis were issued with Beacon Certicates after the Defendant pointed out beacons through its surveyors. She conrmed that building plans were approved by the Defendant’s predecessor for the said plots and thereafter the Plaintis commenced construction. It was her testimony that on the night of 14th January 2011, one of the Plaintis’ watchmen called her to inform her that the Defendant had sent its ocers and a bull dozer to demolish developments that the Plaintis were putting up. 6. She averred that the Plaintis’ developments, were demolished and that the Defendant’s bull dozer was saved from being torched by her neighbors as she had sought assistance from the OCS Shauri Moyo Police Station, who managed the crowds that had gathered and detained the bulldozer. 7. She acknowledged that subsequent to the impugned demolition, other buildings were developed on the suit plots but it does not absolve the Defendant from liability. She also conrmed that she caused a valuation to be done by a Quantity surveyor, one Ng’ang’a Muiruri of Prime Bill consultants who did the demolition and reconstruction costs and came up with a gure of Kshs.24,606,335.28. She also claimed that the Plaintis spent Kshs 2,000,000 to demolish and cart away debris left after the said demolition. 8. On the Defendant’s allegation that approval could not be granted when there were pending cases over the suit plots, being case Nos: ELC NO. 1003 OF 2013, ELC NO. 1113 OF 2013, ELC NO. 1114 OF 2013, ELC NO. 1115 OF 2013, ELC NO. 1116 OF 2013, ELC NO. 1029 OF 2013, ELC NO. 474 OF 2013, ELC NO. 253 OF 2014, ELC NO. 747 OF 2014, ELC NO. 749 OF 2014, ELC NO. 750 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5437/eng@2026-09-17 2

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OF 2014, ELC NO. 748 OF 2014, ELC NO. 751 OF 2014, and ELC NO. 752 OF 2014, she pointed out that all of them were determined vide a Judgment of Hon Lady Justice Komingoi in a test suit: ELC NO. 1003/2013 Mary Mukami Kariithi & 2 others v Nairobi City County. 9. She produced documents in the Plaintis’ list and bundle of documents dated 28th April 2015 as P. Exhibits 1-3, which are annexures in her supporting adavit sworn on 24th January 2011 that include Letters of Allotments, approval for payment, Beacon Certicates, Deed Plans, Survey Plan, Part Development Plan, receipts conrming payment of Stand Premium and other dues, Lease Agreement, letters conrming approval of building plans, duly approved building plans, Excerpts of Nairobi City County’s Town planning committee minutes of January to March 2010, and photographs of the scene of the alleged demolition. She also produced a bundle of agreements, receipts and petty cash vouchers for labour payments. 10. In cross-examination, PW1 insisted that she is a director of the Plaintis even though she did not have documents in Court to conrm the position. Further, that she had authority to give evidence on their behalf. 11. PW2 was James Ng’ang’a Muiruri, a registered Quantity Surveyor. He conrmed that he was a partner at Prime Bill Consultants when the survey work over the suit plots was done. Further, that he personally did the cost estimates valuation. He pointed out that the Defendant’s predecessor had demolished the foundation works, site store and site oces on the suit plots. He testied that they established the cost of reconstruction of the foundation works and demolition and prepared a report dated 18th April 2011 estimating the cost to be Ksh.24,606,335.28, inclusive of 16% VAT. He produced the said report as P. Exhibit 4. 12. He pointed out that the cost is broken into; Plot No. 10 -Kshs.4,112,020/=, Plot No’s 12 & 13 - kshs.9,524,846/=, Plot No. 22 - kshs.3,585,966/=, Plot No . 24 - kshs.3,585,966/= the site store which was 53ft x15ft at kshs.269,000/= and the site oce of 15ft by 15ft at Khs.134,520/=. He also pointed out that when doing a reconstruction, one has to demolish totally the structures that have been compromised. 13. In cross-examination, PW2 conrmed that PW1 and her husband showed him documents to prove the Plaintis’ ownership of the suit plots and their directorship to the Plaintis, but he did not include them in his report since he returned the said documents to his clients. He also stated that while he was informed by the Plaintis that City Council of Nairobi had demolished the developments on the suit plots, he did not witness it but it was visually possible that the site had been demolished. The Defendant’s Evidence 14. DW1 was Wilfred Masinde, the Deputy Director, Development, Inspection and Enforcement in the Directorate of Planning, Compliance and Enforcement of the 1st Defendant. He insisted that the Defendant was not party to the alleged demolition of the building structures on the suit plots and that it did not authorize the same. He also stated that the Plaintis are in occupation of the building structures on suit plots yet they lack an occupation certicate which is a statutory requirement. 15. He produced the Defendant’s list and bundle of documents dated 27th February 2024 as D. Exhibit 1-3 which are; the Defendant’s Internal memo dated 16th February 2018, its letter dated 27th July 2017 and its internal memo dated 15th February 2024. 16. In cross-examination, DW1 acknowledged that the Plaintis had been granted building plans approvals but the structural plan is missing up to date as it was not submitted. He also stated that there https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5437/eng@2026-09-17 3

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were a number of cases over the suit plots which were pending at the time of the alleged approval but he is not aware whether they were concluded. 17. Parties thereafter led written submissions. Submissions 18. The Plaintis submitted that the Defendant having duly approved their building plans, it was estopped from demolishing their property arbitrarily without proper notice and due process thus it cannot escape liability. On damages sought, they submitted that they proved special damages by way of receipts and P. Exhibit 4(valuation report) which were not controverted. 19. To buttress their averments, the Plaintis relied on the following decisions: Republic v Nairobi City County & another ex parte Outdoor Advertising Association of Kenya [2018] eKLR; Municipal Council of Mombasa v Umoja Consultants Ltd [2002] eKLR, Hahn v Singh [1985] KLR 716, and Capital Fish Kenya Limited v Kenya Power & Lighting Co. Ltd [2016] eKLR. 20. On its part, the Defendant submitted that while PW1 testied that she was a director of the two Plainti companies, she did not produce evidence to that eect and neither did she prove to have capacity to plead on their behalf. Further, that PW1 also failed to prove that the Plaintis were registered limited liability companies with capacity to sue and to be sued. It also submitted that PW1 failed to prove that the Defendant was involved in the alleged demolition. It argued that PW2 testied that he was instructed by PW1 and not any of the Plaintis. 21. It contrasted the Plaintis’ testimony to its evidence through DW1 who testied that it was not party to the alleged demolition and that the Plaintis are in occupation of the building structures on the suit plots without an occupation certicate. He urged the court to dismiss the Plaintis’ case. Analysis and Determination 22. 23. I have considered the pleadings, testimonies of the witnesses, exhibits including rivalling submissions and the following are the issues for determination: a. Whether PW1 had locus to testify on behalf of the Plaintis and whether the Plaintis have locus to sue. b. Whether the Defendant unlawfully demolished the Plaintis' developments on Plots Nos. 10, 12, 13, 22 and 24, Section III Eastleigh c. Whether the Defendant is liable for loss and damage and if the Plaintis have proved their claim for special and general damages The Plaintis’ case is that the 1st Plainti owns Plot Nos. 12 and 13 while the 2nd Plainti owns Plots No. 10, 22 and 24 of Section III Eastleigh. They contend that they were allocated the suit plots by the Defendant's predecessor, the defunct City Council of Nairobi vide Letters of Allotment, which they produced as exhibits. They claim that they paid requisite charges and after the suit plots were surveyed, they were issued with Beacon Certicates and subsequently executed leases. It is their case that they obtained building plans approval in 2009, intending to put up residential ats on the said plots, which they commenced construction of, but on the night of 14th January 2011, the Defendant demolished their developments causing them loss, estimated by PW2 who did a valuation to be Kshs. 26,606,335.28. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5437/eng@2026-09-17 4

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24. On its part, the Defendant denies authorizing or carrying out the alleged demolition of the Plaintis’ developments. It contends that there were pending cases over the suit plots at the time of the alleged approvals for development. It also contends that the Plaintis did not submit a structural plan and that they are in occupation of building structures without an occupation certicate, which is a statutory requirement. 25. On the rst issue, when the Defendant raised the question of PW1’s capacity as director of both Plaintis during her cross-examination, PW1 stated that she is the Managing Director of both Plaintis and that she had authority to testify on their behalf. The issue of the Plaintis capacity to sue and be sued only came up in the Defendant’s written submissions. 26. In Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, it was stated that: “ It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded.” 27. Further, in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR, it was stated that: “ Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it…… Submissions, we reiterate, do not constitute evidence at all.” 28. In the foregoing and since the Defendant never raised an objection on locus at the point PW1 was testifying, I nd that the Defendant was estopped from doing so, in its submissions. I hence hold that PW1 had capacity to testify on behalf of the Plaintis and the plaintis had locus to sue. I hence deem PW1’s evidence as valid. 29. On the second issue, the Court will examine whether due process was adhered before the adverse decision of demolishing the Plaintis’ property was taken. The Plaintis contend that they were not given any notice. The Court will also examine whether the Plaintis have proved that the alleged demolition of the suit plots was carried out/authorized by the Defendant. 30. Section 107 of the Evidence Act stipulates that: “ 107 31. (1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that: “ As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the armative of the issue. That is the purport of Section https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5437/eng@2026-09-17 5

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107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden… is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.” 32. On standard of proof, Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that; “ The balance of probability standard means that a court is satised an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” See also the case of Kioko Peter v Kisakwa Ndolo Kingóku [2019] eKLR. 33. At this juncture, I will proceed to analyze the evidence tendered by the Plaintis to conrm if it is indeed the Defendant that demolished their property and if they are entitled to both general including special damages. 34. PW1 claimed that her watchman called her that the Defendant was undertaking demolition of the suit plots on the night of 14th January, 2011 but never brought the said watchman to testify. Further, from the photographs which were produced, there is a heap of debris and a bulldozer. However, there is no indication if it is the bulldozer that was used to conduct the alleged demolition. PW1 in her testimony did not dispute that there were other pending disputes revolving around the suit plots. The Defendant through DW1 denied demolishing the suit plots. PW1 in her testimony, did not identify the agents from the Defendant who allegedly demolished the suit plots. Further, PW2 conrmed that PW1 gave them instructions for valuation but they never saw anyone who demolished the suit plots. 35. From the evidence tendered before Court, none of the witnesses saw the demolition and relied on hearsay evidence. It further emerged that even though the Plaintis had Beacon Certicates and submitted Building Plans, there was no indication that they had submitted structural plans, for approval. I note they were still in occupation of the suit plots but were claiming damages for demolition. It is worthnoting that instead of assessing the alleged demolition together with ocials from the Defendant, the Plaintis proceeded to do so as well as construct on the suit plots which they still occupy. Further, the Plaintis have not denied that they are in occupation of the suit plots without structural approvals. 36. Based on the facts before Court while relying on the legal provisions cited and associating myself with the decisions quoted, I nd that the Plaintis have failed to discharge their burden of proof to demonstrate that it is indeed the Defendant that demolished its premises. 37. The Plaintis have sought for general damages as well as special damages at Ksh.26,606,335.28. In the case of Banque Indosuez v D J. Lowe & Co. Ltd [2006] 2 KLR 208, the Court of Appeal held that: “ It is simply not enough for the Respondent to pluck gures from the air and throw them in the face of the court and expect them to be awarded. It is trite that special damages must https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5437/eng@2026-09-17 6

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not only be claimed specially but proved strictly for they are not the direct and natural or probable consequences of the act complained of and may not be inferred from the act.” 38. The Plaintis produced a bundle of receipts and a valuation report as exhibits. Insofar as the Defendant did not produce a valuation, I opine that it was still incumbent upon the Plaintis to prove their claim. However, since I have already found that the Plaintis did not prove that it is the Defendant who conducted demolition on the suit plots, I nd that their claim for general and special damages as against the Defendant hence fails. 39. In the foregoing, I nd that the Plaintis have not proved their case on a balance of probability and will proceed to dismiss it but make no order as to costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Irungu Mwangi for Plaintis Nyakoe for Defendant Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5437/eng@2026-09-17 7

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