DISHON GITAU MBURU V NAIROBI CITY COUNCIL & ANOTHER [2012] KEHC 3823 (KLR)

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.