[1986] KEHC 60 (KLR)
The court found that the defendant failed to cite any legislative provision authorising the refusal or delay of the plaintiff's development approval. The absence of a statutory basis for the defendant's actions rendered the defence invalid. Consequently, the defence was struck out as it disclosed no reasonable...
Source-derived case information.
- Citation
- [1986] KEHC 60 (KLR)
- Parties
- Applicant: Kigika Developers Limited; Defendant: Nairobi City Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 3923 of 1985
- Procedural Posture
- Civil Case / Application to Strike Out Defence
- Outcome
- defence struck out; matter to proceed to formal proof
- Judges
- JF Shields
- Legal Topics
- Development Approval, Striking Out Defence, Land Use Planning, Municipal Authority Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kigika Developers Limited
Applicant
Nairobi City Commission
Defendant
Procedural Posture
Civil Case / Application to Strike Out Defence
Legal Issues
- 1 Whether the defence filed by the defendant discloses any valid legal basis for refusing or delaying development approval to the plaintiff.
- 2 Whether the defendant had statutory authority to refuse or delay approval of the plaintiff's development plan.
Ratio Decidendi
The court found that the defendant failed to cite any legislative provision authorising the refusal or delay of the plaintiff's development approval. The absence of a statutory basis for the defendant's actions rendered the defence invalid. Consequently, the defence was struck out as it disclosed no reasonable answer to the plaintiff's claim, and the matter was ordered to proceed to formal proof.
Court Disposition
defence struck out; matter to proceed to formal proof
Orders
- The defence filed herein is struck out.
- The action should be set down for formal proof.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO 3923 OF 1985
KIGIKA DEVELOPERS LIMITED ……. …………………………………….. APPLICANT
versus
NAIROBI CITY COMMISSION ……………………..……………………… DEFENDANT
RULING
This is an application to strike out the defence filed by the City Council of Nairobi on the grounds that it discloses no valid defence to the plaintiff’s claim.
The plaintiff company purchased a plot of land being LR 219/16 in July 1981. He wanted to develop this plot and borrowed substantial sums of money to enable it to do so. He submitted a development plan to the defendants as by law required.
The defendant failed to approve this plan on the grounds that it had excised some parts of the land and intended to exchange another plot of land for the land so excised.
This refusal of the defendants to approve the development prepared, caused the plaintiff company to lose a substantial amount of money and the question I have to decide is whether or not the defence filed by the defendants establishes any legal basis for the defendants refusal to grant the desired development approval.
I asked Mr Koge for the defendants to refer me to any legislative provisions which would authorise the defendants to refuse or delay the granting of the desired approval. He made no attempt whatsoever to justify the refusal or delay by citation of any legislative provision. I conclude that the defence discloses no valid defence to the plaintiff’s claim. I am not prepared to give the plaintiffs judgment on its plaint. The matter must go for formal proof.
I order that the defence filed herein be struck out and the action should be set down for formal proof.
The plaintiff is entitled to its costs of the application.
Delivered at Nairobi this 14th day of October, 1986.
F SHIELDS
JUDGE