[2023] KEHC 24711 (KLR)

Elijah Okenye Kenyanya t/a Bono Agencies v City Council of Nairobi & another (Civil Case 440 of 2010) [2023] KEHC 24711 (KLR) (Civ) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24711 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 440 of 2010

AN Ongeri, J

November 3, 2023

Between

Elijah Okenye Kenyanya t/a Bono Agencies

Plaintiff

and

City Council of Nairobi

1st Defendant

Moco Africa Limited

2nd Defendant

Judgment

1. The plaintiff in this case Elijah Okenye Kenyanya T/a Bono Agencies (hereafter referred to as the plaintiff only) sued the two defendants vide plaint dated 18/10/2010 which he amended on 23/1/2019 against City Council of Nairobi and Moco Africa LTD (hereafter referred to as the 1st and 2nd defendants respectively) for demolition of the plaintiff’s structures on block NBI/BLC 93/1418) seeking the following remedies;i.Cost of development on site ksh. 7,071,000. 00ii.Gross income per month ksh.144,000,000. 00(2mx12x6)iii.Mesne profits he could haveSaved out of 1/3 gross income ksh. 2,000,000. 00Ksh.199,071,000. 00

2. The plaintiff is also seeking costs of this suit and interest from the date of filing suit until payment in full.

3. The 1st defendant filed a defence dated 11/10/2020 denying the plaintiff’s claim.

4. The 2nd defendant also filed their defence dated 24/11/2010 stating that it conducted itself in good faith and rented the suit premises known as NAIROBI/BLOCK/93/1418 (hereafter referred to as the suit premises) to the plaintiff and that the 2nd defendant has filed a suit no. ELC CASE NO. 399 of 2010 against the 1st defendant and other parties in respect of the premises.

5. The case proceeded by viva voce evidence. The plaintiff who adopted his written witness statement filed in court on 13/3/2014 said he leased the suit premises from the 2nd defendant by way of letter of offer and he paid a deposit of ksh.1,072,000 together with 3 months rent and legal fees of ksh.100,000 through the 2nd defendant’s agent Kiragu & Mwangi ltd via banker’s cheque no. 064159.

6. The plaintiff’s evidence was that the 2nd defendants gave them architectural designs and presented to him that the same were approved by the 1st defendant and he commenced construction immediately.

7. The plaintiff said he was issued with a single permit no. 2010/1220375 dated 25/6/2010 and constructed structures based on the architectural designs from the 1st defendant.

8. The plaintiff said on 1/7/2010, the officer of the 1st defendant without any notice stormed the suit premises and wantonly destroyed all the structures that he had put in place besides destroying other valuable properties on the suit premises.

9. The plaintiff said he had spent kshs.1,172,000 towards the venture which never materialized. He said he spent 6 million to construct the structures.

10. The plaintiff said as a result of the 1st defendant’s action, he incurred massive damage and loss and he is now seeking compensation.

11. The plaintiff said he is seeking a total of 7,071,000 in respect of the construction and mesne profits of 144 million plus costs and interest.

12. In cross-examination, the plaintiff said the approval had been given to the 2nd defendant when he took over the premises.

13. He said the approval was for a perimeter wall, guard house and ancillary offices.

14. He said the structures were not there when he took possession of the premises in April 2010.

15. The plaintiff also said in cross-examination that he was earning ksh.200,000 per a month from the car wash.

16. The plaintiff said he would have put a club in the premises from which he would have earned kshs.4 million per month.

17. He said he was licensed by the 1st defendant to do a car wash at the premises. He said he paid Kshs. 7000 for the single permit issued to him.

18. The plaintiff called one witness PW 2 Robert Ndege Mokaya who said he was hired by the plaintiff to do the construction of the structures that were demolished.

19. PW 2 said that the plaintiff contracted him to build a bar and a restaurant. He said the entire work cost Kshs.6 million shillings.

20. PW 2 said the construction was 90% done when it was demolished. He said the then minster of lands Hon. Orengo was there when bull dossers arrived and pulled out the entire construction.

21. In cross-examination, PW 2 said he started the work in April 2010 and demolition on 1/7/2010 after 3 months.

22. The 1st defendant called one witness DW 1, Wilfred Wanyonyi Masinde who is the Deputy Director Planning Compliance who adopted his statement dated 25/4/2017 and a further statement dated 8/2/2019 as his evidence in chief.

23. DW 1 said on 3/2/2009 the 1st defendant gave approval to the 2nd defendant to construct a perimeter wall guard house and ancillary offices to the suit premises.

24. The conditions upon which the approval was given was that the suit premises should not be disputed public land and the other condition was that the approval was to be accompanied by an approved plan.

25. DW 1 said in disregard of the conditions, the plaintiff started construction on the suit property which was disputed public land.

26. DW 1 said they issued an enforcement notice under by-laws 256 and the same was served on the last known address.

27. DW 1 said the suit premises is situated along the junction of South B and Mombasa Road with Kabiti Road.

28. He said it is buffer zone and no construction is allowed on such a parcel. He said ministry of lands did investigations and found the suit property was a buffer strip.

29. DW 1 said the enforcement notice was served on the site and the ministry of lands did the demolition.

30. DW 1 said he is the one who served the enforcement notice on the site. He said he posted it on the wall. He said he was guided by Section 256 of the building by-laws. He said the notice was issued on 18/5/2010.

31. DW 1 also said in cross examination that it was the Ministry of Lands that did the demolition. He said the letter dated 2/7/2010 after the demolition was done because the contractor went back to the site and continued with the construction.

32. The 2nd defendant also called one witness DW 2 Milton Muigai Stanley who is a director of the 2nd defendant company. He adopted his statement dated 13/11/2020 as his evidence in chief.

33. DW 2 said that the 2nd defendant is the owner of the suit premises. He said that the 2nd defendant allowed the plaintiff to construct the perimeter wall after he got permission to build guard house and an office.

34. DW 2 said no enforcement notice was served upon him. He said he filed ELC case no. 399 of 2010.

35. DW 2 said the plaintiff was building temporary structures. He said he subleased part of the property to the plaintiff for 6 years. He said the plaintiff paid him ksh.1,072,000 on 01/02/2010.

36. DW 2 said what the plaintiff was supposed to build was a boundary and not a perimeter wall. He said there were other tenants on the suit premises.

37. The parties filed written submissions in this as follows;

38. The Plaintiff submitted that the Plaintiff carried out sufficient due diligence before leasing the suit property from the 2nd Defendant and a search confirmed that indeed the 2nd Defendant was the Registered owner of the property and that there were no encumbrances.

39. The Plaintiff also refuted that the 1st Defendant has issued any vacation notice, which fact, the first Defendant has also been unable to demonstrate by evidence. From the 1st Defendant’s documents, the notice was clearly issued on 2nd July 2010 while the demolitions had taken place a day before, on 1st July, 2010.

40. Further, the plaintiff submitted that a letter dated 2nd July 2010 by the Town Clerk was also presented a letter disapproving the building plan that had already been approved by the 1st Defendant. The 1st Defendant had failed to prove that the 2nd Defendant’s title over the suit property was a forgery.

41. The Plaintiff also submitted that the 1st Defendant’s statement of defense was made up of mere denials and did not raise any triable issues.

42. He stated that the 2nd Defendant in its defense admitted receiving Kshs. 1,072,000 from the Plaintiff as rent over the leased premises, and getting approval of the architectural designs from the 1st Defendant before proceeding to allow the Plaintiff to put up temporary structures on the suit property.

43. He said that the 1st Defendant had also gone ahead to issue business permits without questioning the structures built and nature of business conducted on the suit property.

44. On the issue of liability, the Plaintiff submitted that both Defendants are liable for the loss occasioned to the Plaintiff as it was based on the belief that the 2nd Defendant held good title over the suit property and that the Architectural plans presented by the 2nd Defendant had been approved by the 1st Defendant.

45. The Plaintiff also submitted that his Constitutional Rights to fair Administrative Action as guaranteed by Article 47 and Right to property as guaranteed by Article 40 of the Constitution of Kenya 2010, had been violated.

46. On quantum of damages, the Plaintiff relied on the case of George Kamau Wakanene & 2 others -v- City Council of Nairobi (2017) where the Court awarded Kshs. 2,000,000 for breach of Article 47 of the Constitution and Kshs. 2,500,000 to every Plaintiff as general damages.

47. The 1st Defendant submitted that there was no lease agreement between the Plaintiff and 2nd Defendant thus no damages could be payable to the Plaintiff and he had no recourse against the 1st Defendant. Moreover, the business permit issued to the Plaintiff did not legitimize illegal occupation and structures.

48. The 1st Defendant contends that the demolition of structures on the suit property was lawful as the 2nd Defendant had not complied with the terms of its lease and the architectural designs had not been approved and no evidence had been tendered of such approval.

49. The 1st Defendant however conceded that it approved architectural designs on the name of the 2nd Defendant in his capacity as the Developer and not the Plaintiff, which were limited to proposed roadworks and storm water drainage such that any alteration outside of that scope was illegal.

50. The 1st Defendant also submitted that it issued the 2nd Defendant with notice dated 18th May 2010 against the illegal development which was served on the same day on the wall of the Property in compliance with Sections 38 and 45 of the Physical Planning Act. The period of compliance was 7 days within which the 2nd Defendant had failed to comply.

51. The 1st Defendant also submitted that no appeal had been lodged against the notice as provided under Section 13 of the Physical Planning Act.

52. The 2nd Defendant submitted that no notice of intended demolition had been served before it was effected and only a notice of eviction was served on 8th July 2010, a week after the demolitions had already occurred. It also submitted that the 1st Defendant was purporting to withdraw approval of architectural designs that it had already given.

53. On liability, the 2nd Defendant submitted that it leased out the suit property to the Plaintiff in good faith, never interfered with his business and did not take part in the demolitions, and if any loss was incurred by the Plaintiff, then it was wholly liable.

54. The 2nd Defendant submitted that the issue of whether the suit land was a buffer zone is still the subject of litigation in the matter of Nairobi ELC Petition 10 of 2018, Moco Africa Limited -v- The Honourable Attorney General & Others and that the matter was yet to be decided.

55. The 2nd Defendant said that the 1st Defendant thus had no right to carry out the demolitions as the title has not been canceled and is still private property.

56. With regards to approvals, the 2nd Defendant submitted that it procured approval from the 1st Defendant for construction of a perimeter wall, storm water drainage and public buildings, which were never contested by the 1st Defendant and only the approval of construction of Petrol Service Stations, shops and restaurants had been contested by the 1st Defendant but which the 2nd Defendant had proved.

57. The 2nd Defendant also has a claim against the 1st Defendant for Kshs. 370,223,761. 00 being the loss of expected income together with the cost of the demolished developments on the suit property.

58. The 2nd Defendant further submitted that having demonstrated that the construction was done with the necessary approvals, and providing the summary of the cost of construction, and having presented lease agreements with rent paying tenants, the 1st Defendant should also be ordered to compensate it.

59. The 2nd Defendant thus submitted that the suit should be allowed in its entirety against the 1st Defendant and asked the court to dismiss the suit against 2nd Defendant with costs.

60. It is the duty of the plaintiff to prove his case. The standard required in civil cases is on a balance of probabilities.

61. The issues for determination in this case are as follows;i.Whether the plaintiff leased the suit premises from the 2nd defendant.ii.Whether the 1st defendant illegally demolished the plaintiff’s structures.iii.Whether the plaintiff is entitled to the special damages he is seeking against the defendants.iv.Who pays the costs of this suit?

62. On the issue as to whether the plaintiff had subleased the suit premises from the 2nd defendant, I find that although no lease agreement was produced, DW2 who is the director of the 2nd defendant confirmed he had a lease agreement for 6 years with the plaintiff. Further that rent and deposit had been made by the plaintiff.

63. On the issue as to whether the 1st defendant illegally demolished the plaintiff’s structures, I find that the 1st defendant was not aware of the agreement between the plaintiff and the 2nd defendant.

64. The 1st defendant’s defence was that the demolition was done by the Ministry of Lands upon being established that the structures were on a disputed public property.

65. In the matter of Titus Gatitu Njau v Municipal Council of Eldoret [2015] eKLR the court held that :“Land owners, need to follow the planning of a town, for if the plan is not followed, then there will be critical services which will not reach the population. The continued use of the premises by the plaintiff, for a purpose which was not allowed, was clearly in breach of the terms of the lease, and I am not inclined to allow him damages which will allow him to benefit from a use that was not authorized. It matters not that the defendant did not enforce its right to raise the issue of the user of the premises with the plaintiff. Neither can it be argued that the obligation to use the premises in accordance with its user was waived by the defendant granting business licences to the plaintiff's tenants. The duty to use the premises as prescribed remained that of the plaintiff, irrespective of whether or not, the defendant enforced it. The plaintiff cannot therefore claim loss of income based on an illegal user of the suit premises. I therefore disallow the claim for loss of income.”

66. The 1st defendant said they served an enforcement notice on the site.

67. I find that the permission to build the structures were issued to the 2nd defendant and the plaintiff was a stranger to the 1st defendant.

68. I find that the 1st defendant carried out the demolition in accordance with their by-laws and they are not liable to compensate the plaintiff for the demolition.

69. On the issue as to whether the plaintiff is entitled to the remedies he is seeking against the 1st and 2nd defendants, I find that the plaintiff is a stranger to the 1st defendant since there is no evidence that the 1st defendant ever dealt with the plaintiff.

70. There is no evidence that the 2nd Defendant informed the 1st Defendant that they had subleased the premises to the plaintiff.

71. However, the 2nd defendant confirmed that the plaintiff paid the 2nd defendant ksh.1,072,000 on 01/02/2010 on the basis of an oral agreement.

72. I find that the 2nd defendant is bound to refund the plaintiff ksh.1,072,000 paid to the 2nd Defendant by the plaintiff.

73. On the issue of the special damages in respect of the structures the plaintiff alleged that he had built, I find that the law requires that the same be specifically pleaded and proved.

74. I find that it is not clear from the evidence what the plaintiff had constructed.

75. The approval ER47 was for a perimeter wall, guard house and ancillary office.

76. DW 2 said the perimeter wall and ancillary office were already at the premises when the plaintiff went to site. DW 2 said the plaintiff was to do boundaries and not a perimeter wall.

77. PW 2 the plaintiff’s contractor said he had built a bar and restaurant and that he had done 90% of the work and incurred costs to the tune of 6 million.

78. I find the plaintiff has not proved that he incurred 6 million of the said construction.

79. Although there is undisputed evidence that the 1st Defendant demolished some structures belonging to the plaintiff, it is not clear what structures were demolished.

80. There is also no evidence that the same were approved by the 1st Defendant.

81. The 2nd Defendant said he had been authorized to put a perimeter wall and a guard house and the same were in place when the plaintiff entered the premises.

82. The plaintiff did not prove that he incurred any losses as a result of the demolitions.

83. The allegation that all the receipts were in the destroyed buildings does not hold since the plaintiff had been on the site for barely 3 months. He would have called the suppliers of the materials to confirm they had sold the materials to him.

84. On the mesne profits of 2,000,000 and gross income of 144,000,000/= I find that the same are speculative and have no basis in law.

85. I therefore find that the plaintiff is only entitled to the refund of ksh.1,072,000 paid to the 2nd defendant on 01/02/2010.

86. The rest of the claim against the 1st and 2nd defendants was not proved and the same is dismissed.

87. On the issue of costs, I find that the plaintiff’s structures were demolished and the reason his claim did not succeed is that he did not prove that the structures were approved by the 1st Defendant.

88. I find that the plaintiff did not prove the special damages and for that reason I direct that each party incurs its own costs of the dismissed claim.

89. However, in respect of the ksh.1,072,000 paid to the 2nd defendant, I direct that the 2nd defendant refunds the same with costs from the date of filing this suit until payment in full.

90. Judgment be and is hereby entered in favour of the plaintiff against the 2nd defendant in the sum of ksh.1,072,000 plus costs and interest at court rates from the date of filing this suit until payment in full.

91. The rest of the claim against the 1st and 2nd defendants be and is hereby dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. ………….…………….A. N. ONGERIJUDGEIn the presence of:……………………………………... for the Plaintiff……………………………………… for the 1st Defendant……………………………………… for the 2nd Defendant