[2012] KEHC 3823 (KLR)
The court found that the plaintiff was lawfully allotted the suit property by the 1st defendant, paid all requisite charges, obtained approvals, and commenced construction. The defendants, having been served, failed to enter appearance or file a defence, rendering the plaintiff's evidence uncontroverted. The 1st...
Source-derived case information.
- Citation
- [2012] KEHC 3823 (KLR)
- Parties
- Plaintiff: Dishon Gitau Mburu; Defendant: Nairobi City Council; Defendant: Francis Gichomo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 67 of 2011
- Procedural Posture
- Environment and Land Case / Formal Proof Judgment After Default
- Outcome
- Judgment for the plaintiff. Prayers (a), (b), (d), and (e) granted.
- Judges
- FI Koome
- Legal Topics
- Allotment of Land, Demolition of Structures, Injunctive Relief, Special Damages, Quiet Enjoyment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dishon Gitau Mburu
Plaintiff
Nairobi City Council
Defendant
Francis Gichomo
Defendant
Procedural Posture
Environment and Land Case / Formal Proof Judgment After Default
Legal Issues
- 1 Whether the plaintiff was lawfully allotted the suit property and entitled to possession.
- 2 Whether the defendants unlawfully demolished the plaintiff's structure on the suit property.
- 3 Whether the plaintiff is entitled to special damages and injunctive relief against the defendants.
Ratio Decidendi
The court found that the plaintiff was lawfully allotted the suit property by the 1st defendant, paid all requisite charges, obtained approvals, and commenced construction. The defendants, having been served, failed to enter appearance or file a defence, rendering the plaintiff's evidence uncontroverted. The 1st defendant's demolition of the plaintiff's structure was unlawful, and the 2nd defendant's actions in instigating the demolition were not justified. The plaintiff was entitled to a permanent injunction restraining the defendants from interfering with the property, special damages for the demolition, and an order for quiet and peaceful enjoyment of the land. The court granted the...
Court Disposition
Judgment for the plaintiff. Prayers (a), (b), (d), and (e) granted.
Orders
- A permanent injunction restraining the defendants and their agents from trespassing on, constructing on, transferring, disposing of, alienating, demolishing, wasting or in any manner interfering with Plot No. A27/20 Umoja Innercore Section II Infill.
- Special damages of KShs.2,593,050 awarded to the plaintiff.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ENVIRONMENTAL & LAND CASE 67 OF 2011
DISHON GITAU MBURU ................................................... PLAINTIFF
VERSUS
NAIROBI CITY COUNCIL
FRANCIS GICHOMO ................................................... DEFENDANTS
JUDGMENT
On the 18th February 2011, the plaintiff instituted this suit against the NAIROBI CITY COUNCIL (1st defendant) and FRANCIS GICHOMO, 2nd defendant. The defendants were served with the summons but they did not enter appearance nor did they file a defence. An interlocutory judgment was entered against the two defendants on 8th April, 2011, thus the matter proceeded for formal proof on 11th November, 2011.
DISHON GITAU MBURUtestified that by a letter of allotment dated, 14th October, 2010, he was allotted PLOT NO. A 27/20 UMOJA INNERCORE SECTION 11 INFILL, by the 1st defendant. The plaintiff paid all the requisite charges and took possession of the plot. The plaintiff produced payment receipts for the ground premiums and land rent; as well as the beacon certificate. The plaintiff decided to start developing the plot. First, he commissioned a contractor to prepare for him building plans which he submitted for approval and they were duly approved by the 1st defendant.
The plaintiff paid a contractor by the name of Dismas to start the construction work on the suit property. The building was to cost the plaintiff KShs.4 million. The plaintiff paid Mutisya KShs.385,200/- so as to start the construction which begun and had gone up to the upper slab floor. However, on 3rd January, 2011, the 1st defendant demolished the plaintiff’s structure. By the time the plaintiff’s structure was demolished, he had spent KShs.2,592,050/- being construction expenses.
The plaintiff produced photographs to show the debris after his building was demolished. When the building was under construction, it was being supervised by engineers of the 1st defendant who kept on issuing inspection certificates. The 2nd defendant was sued because he allegedly introduced himself to the plaintiff as the new owner of the plot. He said he had instigated the 1st defendant to carry out the demolition exercise of the plaintiff’s building. The plaintiff, therefore, seeks for the following orders, which in my opinion are established on a balance of probabilities:
(a)A permanent injunction restraining the Defendants by themselves their servants or nay person claiming title through them be restrained from trespassing on, constructing on, transferring, disposing of, alienating, demolishing, wasting or in any manner interfering with the parcel of land known as PLOT No. A27/20 UMOJA INNERCORE SECTION II INFILL.
(b)Special damages of KShs.2,593,050/-.
(c)General damages for the date of illegal demolition by the Defendants to the suit date of hearing and final determination of the suit.
(d)Quiet and peaceful enjoyment parcel of land known as Plot No. A27/20 UMOJA INNRCORE SECTION II INFILL.
(e)Costs of the suit and interest.
(f)Any other relief that this Honourable Court may deem just to grant in the circumstances.
The plaintiff’s claim was not controverted. Although the defendant was served they failed to enter appearance.
Accordingly I hereby grant prayer (a), (b), (d) and (e).
Judgment read and signed this 30th day of March, 2012.
MARTHA KOOME
JUDGE OF APPEAL
Note:
This application was heard and concluded on 13th December, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed as a Judge of the Court of Appeal. I proceeded to write and append my signature thereto in my new capacity.