Silvester Bifwoli Wakoli v Nairobi City County [2017] KEHC 3958 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ENVIRONMENT & LAND COURT

ELC. CASE NO. 230 OF 2009

HON SILVESTER BIFWOLI WAKOLI.............PLAINTIFF

VERSUS

NAIROBI CITY COUNTY...............…………DEFENDANT

JUDGMENT

1. The Plaintiff commenced this suit by way of a plaint dated 20th May, 2011 and filed on the same day.  He pleaded that he was the legal owner of all that piece of land LR Number 209/8294/347 situated in South C Estate within Nairobi;  On the night of 17th May 2011 and the morning of 18th May, 2011 the Defendant’s employees illegally and without cause invaded and trespassed on the said property demolished a four bed-roomed house and looted his property without notice or reason served upon the Plaintiff, that they left the affected property in an“un-occupiable” state; the Plaintiff then reconstructed a semi permanent fence and hired security to guard the premises pending reconstruction; he also incurred costs in moving the household items left undestroyed which he moved to an alternative place since the tenant had to leave the house due to insecurity.

2. The Plaintiff prays for a perpetual injunction restraining the Defendant and its agents from further trespassing, destroying, claiming and/or interfering with the Plaintiff’s property, an order that the Plaintiff’s property is not in a road reserve or bypass, compensation for malicious damage and cost of reconstruction of the property to its former state being Ksh. 855,845. 10, compensation for damaged and looted property amounting to Kshs.2,273,800/= and compensation for transportation costs incurred while moving household goods and hiring security.

3. In its defence dated 12th September, 2011 and filed on the same day the Defendant pleaded as follows: that the Defendant is the lessee of all that piece of land known as LR No. 209/8249, that the claim that the Defendant illegally trespassed and demolished any buildings or structures erected on LR No. 209/8294/347 is denied, that the Plaintiff is not entitled to compensation, that the defendant never permitted or approved the illegal structures on LR No. 209/8294/347 and therefore if the Plaintiff ever constructed the structures on the said land the same were unlawful and illegal for want of sanction by the Defendant and therefore the issue of destruction without notice to the Plaintiff does not arise.

4. The Defendant further avers that Notice under the Physical Planning Act had been issued prior to the demolition against the demolition Notice as required and that the complaint is at this stage barred by the provisions of the Physical Planning Act.  Further, the Defendant avers that this court lacks jurisdiction to hear and determine this matter in view of the provisions of Section 38(4) and 39(2) of the Physical Planning Act.

5. In my view the issues that arise for determination in this matter are as follows:-

1. Whether the Plaintiff was the legal owner of all that land parcel known as LR 209/8294/347?

2. Whether it was the Plaintiff’s house or the servant’s quarters that was demolished by the Defendants agents on the night of 17th – 18th May, 2011?

3. Whether, if it was undertaken the demolition was justified or in accordance with the law?

4. Whether the Plaintiff suffered loss and damage?

5. Whether the Plaintiff is entitled to the remedies sought in the plaint?

6. Who should bear the costs of this suit?

6. The issues listed above are addressed as hereunder:

(1)  Whether the Plaintiff was the legal owner of all that land parcel known as LR. No. 209/8294/347.

7. At paragraph 3 of the plaint the Plaintiff pleaded that he was, at all material times the registered legal owner of LR. No. 209/8294/347 situated in South C within Nairobi.  The Defendant in its defence denied that the Plaintiff was the registered owner of “L.R. Number 209/8294. ”  These two Land Reference Numbers are different.  A copy of the certificate of title to the land parcel No. L.R No. 209/8294/347 was produced evidence of ownership of the land by the Plaintiff.  It was not challenged by the Defendant and it was marked “P Exh.1”.  It reflects that the land was transferred to the Plaintiff on 26th May, 2003 and that the title was immediately charged to the Parliamentary Service Commission for the same sum that was paid as consideration, that is Kshs. 3,800,000/=, a sum which is relevant in the latter part of this judgement as will be seen.  There is no other entry after the charge to the Parliamentary Service Commission.  I find that the Plaintiff has proved that he was the legal proprietor of LR No. 209. 8294/347 at all the times material to this suit.

2. Whether it was the Plaintiff’s house or the servant’s quarter that was demolished by the Defendant’s agents on the night of 17th – 18th May, 2011.

8. There was confusion in the plaint as to whether it is the main house or the servants’ quarters that were demolished by the defendant. The Plaintiff pleaded at paragraph 4 of the plaint that the Defendant’s employees invaded and “trespassed the Plaintiff’s”(sic) house built on his property “being a four bedroomed mansionette,(sic)”demolished it and its walls” destroyed and/or looted his property without notice or reason served or given to the Plaintiff.

9. Under the “particulars of trespass and unlawful actions by the Defendant”heading in the plaint the Plaintiff stated as follows:-

a) ..

b) ...

c) Knowingly demolishing the Plaintiff house without cause and reason.

10. At paragraph 6 of the plaint the Plaintiff stated as follows:-

“The whole servant quarters was demolished by the Defendant while the Plaintiff’s son was asleep as he occupied the rooms and he was thrown out in darkness where all his things were destroyed and looted helplessly.”

11. The Plaintiff does not stop there.  In his statement which was filed together with the plaint, he states as follows:

“That I was shocked and traumatized when the City Council in the dead of the night on 17th May, 2011 demolished my house and destroyed my property wherein all that was visible and could be carried was looted.”

12. The Plaintiff further stated as follows:

“My son occupies the house with another tenant but they have since moved out due to the insecurity problems.”

13. The impression given by the Plaintiff is that it is the main house which was demolished.However, paragraph 6 of the plaint seems to indicate that the servant’s quarters is the structure that was demolished.Nothing would have been simpler for the Plaintiff than to present photographic or other evidence that would corroborate his evidence that the main house or the servant quarters, or both, whichever the case, had been demolished. This he did not do.

14. For unknown reasons, the pleading by the plaintiff appears to be trying to obfuscate the truth as to whether it was the main house, or the servant quarters or both structures that were demolished.  I find this to be very improper method of pleadings simple facts that should be easy to state, as it sends the court on an unnecessary mission to verify them.

15. The Defendant did not acknowledge that he demolished the Plaintiff’s main house though in the Plaintiff’s belief paragraph 17 of the Defendant’s defence amounts to an admission of that effect.  The Defendant denied that claim and averred that in 2011, the Defendant noticed that the Plaintiff, like other persons whose premises neighbour his, had illegally converted his domestic servant’s quarters into business enterprise called Beauty Salon which is a commercial development entity not in consonance with the approved user.

16. The Defendant stated that the Plaintiff had done this by unlawfully constructing a door opening to Ole Shapara Road for purposes of the Salon, contrary to the City Council adaptive by laws in which direct access/opening to the main road is not allowed.  The said beauty salon did not have any approval for extension of user.  This lack of approved extension of user is what occasioned the demolition.  According to the defendant, only the illegal structure, the beauty salon, was partially demolished in accordance with Section 39 of the Physical Planning Act.

17. The plaint is misleading.  However reading in between the lines this court is able to determine that what was demolished was a servants quarters though for some unknown reason the plaintiff appears unable to concede to this.

18. The evidence from the two witnesses who testified in court points to the fact that a structure of lesser magnitude than the main house was demolished.  Besides, the plaintiff’s own documents produced in courtare conflicting: “PExh2” talks of demolition of the plaintiff’s residential house premises” and describes it as a “four bedroom massionate.” (sic). PExh 3 is headed “things that were looted from my house. Hon BifwoliWakoli.”Concerning P Exh 4the plaintiff owned it up and produced it in evidence saying as follows:

“I did a quantity survey for the loss. I consulted Buildnett Consultants. They did a quantity survey for the partial demolition.  They came up with the sum of Ksh 855,845/10. That was the damage to the property. I wish to produce the Bill of quantities to the court.”

19. P Exh.4 is titled:PROPOSED RECONSTRUCTION OF DSQ ON LR 209/8294/347. IR29390 FOR HON BIFWOLI WAKOLI.”I find that going by the purchase price on the title document, if the main house had been demolished, the costs of reconstruction claimed would have been higher than the estimated Kshs. 855,845. 10 claimed by the Plaintiff in the plaint.

20. Thereforethis court finds that the main house of the Plaintiff was not demolished. The Defendant only demolished the domestic staff quarters which was nonetheless, built on the Plaintiff parcel of land that is known as LR No. 209/8294/347.

21. That servant’s quarter was the Plaintiff’s property and it behoves this court to inquire into the issue as to whether the demolition was undertaken in accordance with the law.

3. Whether the demolition was under taken in accordance with the law.

It is the Plaintiff’s case that:- the demolition undertaken by the Defendant was unlawful in that he was not issued with a notice; that he had maintained the premises in the condition and state they were in as at the time he purchased the property and that the property is not “in a road reserve or bypass” (sic).  The latter claim that the property was not on a road reserve or bypass is of no relevance at all in this matter because the Defendant has not claimed that the property had encroached on any public road or path.

22. What I understand the Defendant to be saying is that the reason for demolition was that the Plaintiff had illegally converted his domestic quarters into a commercial entity in the form of a beauty salon.  To effect this the Plaintiff had constructed a door opening out to Ole Shapara road for the purpose of the Salon.

23. The Defendant states that this was contrary to the City Council adaptive building by laws in which direct access for opening to the main road is illegal. The Defendant does not deny that the plan for domestic staff quarters were approved by the Defendant, but it avers that the commercial user of the premises was not approved by the defendant.

24. It is the defendant’s case that the plaintiff needed an approval for extension of user in order to legally operate a beauty salon.  This, the Defendant said was demanded by Sections 30, 31 and 41(3) of the Physical Planning Act. It is the defendant who grants approval for such extension.

25. The Plaintiff has not filed any reply to the defence.  Ordinarily such averments would need to be opposed or responded to as appropriate; otherwise they are deemed as admitted.  I have already found that the domestic staff quarters on the Plaintiff’s premises were demolished by the Defendant on the night of 17th – 18th May, 2011.  The questions that need to be discussed are as follows:

a) Was the domestic staff quarters built on the Plaintiff’s property illegally converted into a beauty salon contrary to the adaptive building by laws of the Defendant?

b) Was any notice of demolition issued by the Defendant?

c) If so, did the Plaintiff comply with the terms of the Notice?

These sub issues are addressed as hereunder.

a) Was the domestic staff quarters built on the Plaintiff’s property illegally converted into a beauty salon contrary to the building by laws of the Defendant?

26. I have already found that the plaintiff was quite evasive in his pleading; I have also already mentioned that there was no reply to defence in this matter.  The general rule of pleadings is that matters must be specifically pleaded. Halsbury’s Laws of England, Fourth Edition, Vol. 36 par. 48 pg. 38 states:

“The defendant must in his defence plead specifically any matter which he alleges makes the action not maintainable or which, if not specifically pleaded might take, the plaintiff by surprise or which raises issue of fact not arising out of the statement of claim. Examples of such matters are performance, release, any relevant statute of limitation, fraud or any act showing illegality.”

27. In the same book (Bullen &Leakes& Jacobs Precedents of Pleadings) the following paragraphs appears at page 106:

“A reply may be served by the plaintiff in answer to the defence of the defendant without leave but in many cases it is unnecessary to serve a reply.  If no reply is served a defence which is unaccompanied by a counterclaim, there is an implied joinder of issue on that defence which means that the material allegations of fact in the defence are deemed to be denied. It is still, however, necessary for the plaintiff to serve a reply in the following cases:-

(a) If he desires to admit, so as to save unnecessary costs some of the facts alleged in the defence, while denying others, or if he desires to admits the facts or some of the facts, alleged in the defence and to meet them by asserting new and additional facts”.(Emphasis mine).

28. Order 2, rule 12of the Civil Procedure Rules 2010which provides as follows:

“If there is no reply to defence, there is a joinder of issue on that defence.”

29. The defendant pleaded all necessary material that was meant to demonstrate illegality on the part of the plaintiff’s action in relation to the subject matter of the suit.In the case of DENNIS OIGORE OONGE –VS- NJUCA CONSOLIDATED LTD 2012 EKLR. KISUMU C.A NO. 310 OF 2006 Per Maraga J, (as he then was) the following passage appears:

In my view in giving that construction of Order 6 Rule 9(1)of the Civil Procedure Rules the court was influenced by the fact that the Plaintiff in that case alleged negligence against the Defendant but contrary to Order 6 Rule 9 (1) of the Civil Procedure Rules he did not plead particulars of that negligence. Order 6 Rule 9 (1) provides that:-

“Subject to sub-rule (4), any allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a denial of it.”

Sub-rule (4)referred to in this provision is not relevant in the present case.   Rule 10(1) of that Order which is also referred to provides that:-

“If there is no reply to defence, there is a joinder of issue on that defence.”

The proper construction of the Rule 8 (1), in my view, is the one stated in KatibaWholesellers Agency (K) Ltd Vs United Insurance Co. Ltd., Civil Appeal No. 140 of 2002 where this court stated that:-

“.......where a defence contains an allegation of fact, and a reply is filed, ....it is necessary for the plaintiff to deny in the reply any allegation in the defence which he intends to dispute. If he fails to do so then he is deemed to have admitted the defence allegations.

It is only if the plaintiff does not file any reply that there is joinder of issue on the defence which operates as a denial of all allegations contained in the defence.” (Emphasis mine).

In the light of the provisions of Order 6 Rules 9(1) and 10(1) and this authority, the Appellant having not filed a reply to defence, there was clearly a joinder of issues with the effect that the Appellant denied the negligence alleged against him in the defence just as the Respondent denied the negligence alleged against him in the plaint.The High Court therefore erred in deeming the Appellant as having admitted the allegations of negligence in the defence against him. (Emphasis mine).

30. I must at this point stress the fact that the defendant’s defence herein is not as simple as the defence in the Dennis OigoreOonge case above where it could be simply deemed, in the absence of a reply to defence, that the Appellant denied the negligence alleged against him in the defence just as the Respondent denied the negligence alleged against him in the plaint.The defence in this case did not involve abstract principles of omission to do something, but asserted that the plaintiff did something illegal, the conversion of user, and omitted to do something legal, the application for approval of that extension of user.

31. In his evidence-in-chief, the Plaintiff states as follows concerning this issue:

“I had not put up any illegal structures on the property.  I was not issued any notice....   There was no beauty salon on my premises.  I have never used the house as anything else but as a residential house.”

32. If this were so, nothing would have been easier than for the Plaintiff to file a reply to the defence and deny the facts set out by the Defendants.

33. The plaintiff’s plaint is a simple one stating that his house was demolished for reasons that he does not know. The defendant’s defence is an elaborate pleading. It states in no uncertain terms that the plaintiff had conducted an illegal development on his property and that that was the reason for the demolition.

34. In my view the defence raisedseveral new issues not addressed in the plaint, and consequently not replied to by the plaintiff, whose determination is vital in this case. The issue of the illegality of the developments on the plaintiff’s premises and the service of an enforcement notice upon its occupants arose here for the first time. The defendant even makes some admissions such as: “the plan for domestic quarters were approved by the defendant…,”while denying others thus: “the beauty salon did not have approval for extension of user.”

35. Some of the statements in the defence raise legal issues, for example paragraph 18 which states: “Consequently any complaint at this stage is time barred in terms of Section 38 (4) and 39(2) of the Physical Planning Act Chapter 286 Laws of Kenya.”

36. In support of the defence the Defendant called one witness, one Wilfred WanyonyiMasinde.  He testified that he is a Building Inspector working with the City Planning Department.  He was the area Inspector.  He averred that there was an illegal extension of user relating to the Plaintiff’s plot.  It had been converted from residential use to commercial use without any approval.  He saw the development.  It was a salon business.  He stated that it was a development that involved a construction additional to the main house and had extension of use from residential to commercial use.

37. When the Defence raised the issue of illegality of the Plaintiff’s developments on the said plot which included a plea that there was an illegal commercial enterprise operating on the premises the Plaintiff should have alerted himself to the need to file a reply to defence and specifically address the issue.

38. I find the following paragraphs from the case of KISII CIVIL APPEAL 232 OF 2005 NJUCA CONSOLIDATED LTD VERSUS TOM MOGAKA ONDIEKI relevant to this case:

“From the evidence on record, it is true that the respondent’s pleadings were at variance with his evidence in chief.  There was neither evidence of any excavation that was being done on the material day nor of any vehicle or tractor that was being used at the scene of the accident.

The capacity in which the respondent was working at the time of the accident was important because parties are bound by their pleadings.  The conduct of a case and the determination thereof is largely dependent on the issues that are pleaded and proved.  See WAREHAM t/aA. F. WAREHAM & 2 OTHERS VS KENYA POST OFFICE SAVINGS BANK [2004] 2 KLR 91.

“In that matter, the Court of Appeal stated as hereunder:

“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings and the issues of fact or law framed by the parties or the court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil ProcedureRules.  And the burden of proof is on the plaintiff and the degree thereof is ona balance of probabilities.  In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue.  It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”

39. A party is bound by his pleadings.  What is pleaded and not denied must be deemed by this court to have been admitted.  In this case, the court does not have to make any assumptions.  The Defendant’s sole witness was an eyewitness to the developments on the plot before they were demolished.  The Plaintiff should not be allowed to get away with total silence over the issue.

40. It was crucial for the determination of this case in the Plaintiff’s favour that he needed to demonstrate that the Defendant’s action of demolition was illegal.  By his silence the court is moved to believe the Defendant’s version of events.  Order 2 rule 12 of the Civil Procedure Rules is therefore inapplicable to the main pleadings in this case.

41. I therefore find that the premises of the Plaintiff had a servant’s quarter.  I also find that, whether with or without the knowledge of the Plaintiff, the said servant’s quarter had been altered, without any prior development permission from the Defendant and that they had through that alteration been converted into a beauty salon and that the beauty salon had by virtue of the alteration, an access that opened out onto Ole Shapara road, which direct access the Defendant’s Planning Section strongly objected to to the point of demolishing the beauty salon.

b). Was any Notice issued by the defendant?

42. The plaintiff avers that there was no Notice issued before the demolition. The defendant insists that Notice was issued. The defendant attempted to produce a copy of the Enforcement Notice.  The plaintiff’s counsel objected to this production and the court upheld the objection for reasons given.

43. However DW1 testified that Notices were issued, not just to the occupants of the plaintiff’s premises, but also the occupants of other offending premises in the neighbourhood. The fact that other premises were affected in an operation carried out by the defendant is borne out by the plaintiff’s evidence when he says:-

“There were a number of demolished houses.  Mine was not brought down completely, only halfway”.

44. DW1 stated as follows:-

“An Enforcement Notice was issued to the entire affected neighbourhood. The plaintiff was issued with a Notice.  We exhausted Section 254 of the City Council Bylaws. Notice was served on the site. Because we were dealing with the development and the development was open and there was salon work we served the occupiers. They did not respond.  We targeted the development not the individuals.  We did not know the names of the people.  All the procedure was exhausted according to the Physical Planning Act. This is the Notice.  It was served on the developer”.

There had been a prior dispute in these proceedings as to the proper notice served upon the occupiers of the premises. In paragraph 5 of the ruling dated 13th December 2011the Hon Justice R.E. Ougo captured the dispute as follows:

“5. That when he sent a demand letter to the defendant he learnt through the defendant’s response through their letter dated 30th May 2011 that he was allegedly given a notice serial number 9844 on the 6th December 2010. That this contradicts (what) the respondent avers in their sworn affidavit dated 12th September 2011 at paragraph 13 which states that he was served with a notice Serial Number 11436. ”

Although at this point in the testimony of DW1 the objection to produce the copy of the Notice was upheld, this court made note of the conduct of the plaintiff. Despite the known existence of the dispute regarding the actual notice served, the plaintiff never at any point during the process of discovery demand by notice the production of the original copy of that Notice or the booklet from which it was detached at the time of service.

Upon further examination by this court, DW1 stated as follows:-

“The Notice was served on site on the developer. The developer is the occupier.  I did not know the names.  There were ladies who were occupying that unit”.

45. This accords well with the earlier observation that the development was open and the business of a beauty salon was being carried on therein. It appears that the persons occupying illegally converted premises or carrying on any business thereon are the normal targets or recipients of Enforcement Notices issued by the defendant. This comes out of the evidence of DW1 very clearly when he describes the procedure of serving enforcement notices. According to him, the Enforcement Notice needed not be served upon an owner of the premises; it was sufficient to serve an occupier or developer of the land in possession.

46. Section 38 of the Physical Planning Act states as follows:-

“38 (1) when it comes to the Notice of a Local Authority that the development of land has been or ………the Local Authority may serve any Enforcement Notice on the owner, occupier or developer of the land”.

47. From the pleadings filed it is very clear that the plaintiff never resided on the land.His son did.  If the Notice was ever served upon the occupants of the illegal development, it would suffice for the purposes of the Physical Planning Act.  What is not established is whether such occupants would communicate the fact of service of such Notice, or even transmit it to the plaintiff, seeing that it threatened the very existence of their livelihood.  The plaintiff’s son was not called as a witness to testify in this suit, which is a curious issue, since he was the affected occupant at least according to the plaintiff’s version, and the destroyed goods were his.

48. Since the law provides that an occupier may be served with an Enforcement Notice, it is the defendant’s position that the defendant did not have to seek the plaintiff from wherever he could be and serve him with the said Notice.  Service of the Notice upon the occupants was sufficient.

49. In this case none of the occupants of the premises, even the plaintiff’s own son were called to give evidence for the plaintiff and no explanation was given for this.  Besides, the plaintiff did not file any reply to the very elaborate defence of the defendant.  The defendant’s witness does not state that he pasted the notice on the beauty salon’s wall. He states he occupants thereof were served.

50. In my view the plea by the defendant that the service of notice was effected on the occupiers as mandated by the provisions of Section 38of the Physical Planning Act shifted the burden of proof to the plaintiff. He needed to call evidence to rebut this assertion.  He did not.

51. I find the contents of the defence on the allegation of non-service of the Notice to have been sufficient to alert the plaintiff to file a reply to the defence or call the occupants of the premises to give evidence. He did not.

52. As I have observed before while addressing another issue in this judgment, In the current case statement of defence filed by the defendant is not a mere denial of liabilitywith an accompanying plea of negligence against the plaintiff as in theDENNIS OIGORE OONGEcase (supra). It does not merely deny the allegations in the plaint.  It is also not a frivolous or evasive pleading.  It also makes allegations of fact which needed to be addressed by the plaintiff.  For example though the plaintiff simply said that he was not served with any Notice, the defendant’s witness testified that Notice was served upon the occupants of the beauty salon, the illegal development as mandated by law.  Though the plaintiff pleaded that there was no illegal development on the land, the defendant pleaded and stated through the evidence of DW1 that there was such an illegal development.  The issue of planning permission which is normally issued by the defendant, arose for the first time in the defence, yet there was nothing pleaded by the plaintiff in reply to the defence to show that the plaintiff’s development had been approved by the defendant’s Planning Department. In fact the plaintiff would rather have it believed that the development stated by the defendant had not occurred.

53. The plaintiff was living far away from the premises.  If the Notice was served upon the operators of the beauty salon the plaintiff would not know unless the said operators served informed him.

54. If the plaintiff’s son was resident on the premises he would, if he was a responsible person, know if the servant’s quarters had been converted into a beauty salon, and the occupants thereof, and if prior planning permission had been obtained. However this court never heard of the plaintiff’s son save in the passing statement that he had been resident on the premises.

55. Since the plaintiff denied the existence of an illegal development on his premises, it followed naturally that the operators of the beauty salon could not be called to give evidence as this would conflict with the plaintiff’s pleading that there was no illegal development.

56. If the Notice could in law be served and was indeed served upon an occupant of the premises and the plaintiff did not ordinarily reside at the premises, then the plaintiff would never know of the service of Notice upon the operators unless they informed him of the same.  It may be safely assumed that any persons resident on the premises were present with the sanction of the plaintiff.

57. Arising I therefore find that the plaintiff has not proved on a balance of probabilities that Notice was not served upon his son or upon the operators of the beauty salon.  Based on circumstantial evidence before the court, I find that Notice was served and that for some reason, the plaintiff or the occupants of the beauty salon and the house did not respond to the said Notice hence the demolition of the illegal structure by the defendant.

4. Whether The Plaintiff Is Entitled To The Remedies Sought In The Plaint.

58. It has been the observation of this court that there was an illegal development on the premises owned by the plaintiff, that the plaintiff was issued with an Enforcement Notice and that his servant’s quarter was demolished pursuant to this Notice.

59. The court must in any event address remedies sought as against the defendant in detail.  The Kshs.855, 845. 10 amount to special damages in law, which are specifically pleaded and which needed be proved. This has not been done by way of receipts demonstrating that that was the actual money expended.

60. It is now six (6) years since the demolition took place and the plaintiff, has not shown that he reconstructed the demolished structure or incurred the alleged costs of reconstruction.I find that the claimed special damages Kshs.855, 845. 10 have not been proved.

61. In respect of the claim for Kshs.2, 273,800/= this court observes that the plaintiff never lived in the house but his son did. No evidence was led in respect of this son, including his age.  If he was a minor, there is no pleading to show that the plaintiff sued for this amount on behalf of a minor son. If he was of majority age there was no reason why the plaintiff should be allowed to claim on his behalf without his authority. It was incumbent upon the plaintiff’s son to lodge his own claim in this court if he sustained any loss or damage.  He has not done so. In short, the claim for Kshs.2,273,800/= fails for the stated reasons.      The impression made upon this court is that from be very beginning there was something that the Plaintiff was afraid of conceding in an open and forthright manner.

62. The claim for costs incurred in transporting households and security was neither quantified nor specifically pleaded and it is therefore denied.

63. . The upshot of the foregoing is that the plaintiff has not proved his claim on a balance of probabilities.  I therefore dismiss this suit, but order that each party will bear its own costs.

Signed at Kitale on this 11th day of July, 2017

MWANGI NJOROGE

JUDGE

Dated, signed and delivered at Nairobi on this 19th day of  July, 2017

K. BOR

JUDGE

Judgement read in open court in the presence of:

No appearance for the Plaintiffs

Mrs. Omondi for the Defendant

Court Assistant: V. Owuor.

K. BOR

JUDGE