Francis Wanjala Simiyu v City Council of Nairobi [2018] KEHC 5850 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 313 OF 2014

FRANCIS WANJALA SIMIYU ........................................ APPELLANT

VERSUS

CITY COUNCIL OF NAIROBI ..................................... RESPONDENT

JUDGEMENT

(Being an appeal from the whole of the decision and Judgment of Hon. A. Lorot H.R Ag. SPM dated 29th June, 2014 in CMCC No. 4402 of 2009 dismissing the Appellant’s suit)

The appellant sued the respondent in the lower court claiming that he was the owner by way of allotment of plot No. C4- 157 Kayole Nairobi having been allocated the same by the respondent, who was his former employer on 23rd June, 1987.

In his pleadings before the lower court, he said he had always made prompt payment towards settlement of the allotment fees. In the year 2005 he visited the property with the intention of commencing construction but found the plot had been allocated to a third party who had taken possession and commenced construction.

On confronting the respondent, it was confirmed that the plot had been allocated to a third party and that the respondent undertook to cancel that allocation and reinstate the appellant. This was not done and so he filed the suit claiming and order of specific performance costs and interests at court rates.

The respondent denied the appellant’s claim but while admitting that the appellant was allocated the said property, he was supposed to have developed the said property within 12 months from the date of allocation failure of which it would be repossessed. It was the respondent’s case that the appellant failed to comply with the said condition and the property was repossessed and allocated to one Evans Maduda on 15th December, 2003 which was more than six years since the original allotment to the appellant.

The lower court heard the parties and in its judgment delivered on 27th June, 2014 dismissed the appellant’s suit. The appellant was aggrieved by that decision hence this appeal. It is clear from the evidence presented before the lower court that the appellant was in breach of the conditions attached to the allotment of that property.

The respondent was therefore justified in allocating the property to a third party. There was also evidence that the third party had started developing the property in question. If it is true that the appellant visited the property, he must have known or ought to have known the third party. That notwithstanding, he did not join the third party to these proceedings.

The lower court rightly observed that the property having been developed, the court would run the risk of awarding the appellant development unjustly. The court also added that specific performance is an equitable remedy, which will not be granted where a party has made grave omissions whether knowingly or inadvertently.

My assessment of the evidence on record is that the appeal lacks merit and the same is accordingly dismissed. There is no order as to costs.

Dated, signed and delivered at Nairobi this 31st day of May, 2018.

A. MBOGHOLI MSAGHA

JUDGE