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Court of AppealPartially AllowedCivil Appeal No. 106 of 2015

Municipal Council of Eldoret v Titus Gatitu Njau [2020] KECA 782 (KLR)

Court of Appeal of Kenya
3 April 2020
GIGithinjiOKOkwenguJMJ. Mohammed
5,035 words in judgment
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The bottom line

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Kenya's Court of Appeal wiped out Kshs 15.5 million in damages against Eldoret's municipal council, ruling statutory demolitions breaching court orders should be punished through contempt, not damages.

What this practically means

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Executive summary

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The Municipal Council of Eldoret appealed against a judgment of the Environment and Land Court at Eldoret (Munyao, J) which, in a claim by Titus Gatitu Njau, the registered proprietor of Eldoret Municipality Block 4/337, declared the Council a trespasser and awarded Kshs 500,000 general damages for trespass and Kshs 15,000,000 exemplary damages for demolishing structures on the property in the face of an interim injunction. The Council had approved a change of user to a petrol station, later declined the respondent's application for commercial user, and served demolition notices before demolishing structures on 27th April 2005, despite an interim injunction. J. Mohammed, JA, writing the leading judgment, held this was a first appeal to be decided on the evidence, and that the demolition, though in disobedience of a court order, did not contravene any statute: it was sanctioned by sections 29 and 38 of the Physical Planning Act, and the respondent conceded due notice. Applying the Rookes v Barnard categories, the court held the Council's conduct was not oppressive, arbitrary or unconstitutional, so exemplary damages did not lie; the disobedience was redressable in contempt proceedings, which the respondent abandoned, not by damages in trespass. The general damages for trespass also failed. Okwengu, JA concurred, adding that the Council's actions were not calculated to profit it. The court reversed the trial judgment, set aside both awards, and awarded the costs of the appeal to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's demolition of structures on the suit property was lawful and/or justified, having regard to the Physical Planning Act and the change-of-user position
  2. 2.Whether the appellant's conduct was oppressive, arbitrary or unconstitutional so as to justify an award of exemplary damages
  3. 3.Whether the respondent could claim general damages for trespass against the appellant where the demolition was carried out in disobedience of a court order
  4. 4.Whether the appellate court was justified in interfering with the trial judge's exercise of discretion in assessing damages

Key legal issues

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01

Whether the demolition of the structures was lawful and sanctioned by statute

Holding

The demolition did not contravene any statute; the appellant acted under its powers under sections 29 and 38 of the Physical Planning Act, and the respondent had due notice of the demolition.

Reasoning

The court found that the appellant had statutory power under section 29 of the Physical Planning Act to prohibit or control the use and development of land and buildings, and under section 38 to serve enforcement notices. The respondent conceded he had notice and was using the property for an unapproved purpose. The trial judge had himself found that with appropriate notice the appellant would have been entitled to demolish the building. The only ground on which the demolition was faulted was disobedience of a court order, not any statutory illegality.

p. 5
02

Whether exemplary damages of Kshs 15,000,000 were justified

Holding

No. The appellant's conduct was not oppressive, arbitrary or unconstitutional, and the award was set aside.

Reasoning

Applying Rookes v Barnard categories as adopted in Kenyan authority, exemplary damages punish and deter and lie only in rare instances. Since the demolition was sanctioned by statute and the respondent had due notice, the appellant's conduct did not meet any of the categories. Disobedience of the court order was a matter for contempt proceedings, which the respondent abandoned. The trial judge erred in principle, justifying appellate interference with the discretionary award.

p. 5
03

Whether general damages for trespass of Kshs 500,000 were maintainable

Holding

No. The respondent cannot claim damages for trespass where the appellant was duly authorized by statute to demolish unlawful structures.

Reasoning

Restating the ingredients of trespass, the court noted trespass protects possession, but here the appellant acted under statutory authority with due notice given. The demolition was unlawful only in the sense of contempt of the injunction; that wrong is redressed by contempt proceedings, not damages in trespass. The award of general damages for trespass was therefore set aside alongside the exemplary damages.

p. 6

Legal principles established

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  • An appellate court may interfere with the quantum of damages awarded by a trial judge only where the judge took into account an irrelevant factor or left out a relevant one, or where the amount is so inordinately low or high as to be a wholly erroneous estimate.
  • Exemplary damages may be awarded only in limited categories: oppressive, arbitrary or unconstitutional action by servants of government; conduct calculated to profit the defendant beyond the compensation payable; or where expressly authorized by statute.
  • Disobedience of a court order in the course of a statutorily-sanctioned enforcement action is to be redressed through contempt proceedings, not through an award of damages in trespass.
  • Trespass is a violation of the right to possession, and a plaintiff must prove a right to immediate and exclusive possession of the land, which is distinct from ownership.

Court orders

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  1. 1.Appeal allowed
  2. 2.Award of exemplary damages of Kshs 15,000,000 set aside
  3. 3.Award of general damages for trespass of Kshs 500,000 set aside
  4. 4.Costs of the appeal awarded to the appellant
  5. 5.Judgment decreed in accordance with Rule 32(3) of the Court of Appeal Rules

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority

Wrote the judgment

Wrote the leading judgment. Held that the demolition was statutorily sanctioned under the Physical Planning Act and that the respondent had due notice; disobedience of the injunction was a matter for contempt proceedings, not damages. Set aside both the exemplary damages of Kshs 15,000,000 and the general damages for trespass of Kshs 500,000, and awarded the costs of the appeal to the appellant.

Accordingly, I would allow the appeal and set aside the award of exemplary damages of Kshs 15,000,000/= and general damages for trespass of Kshs 500,000/=. I would award the costs of this appeal to the appellant.p. 6
OK
concurring

Wrote the judgment

Agreed with J. Mohammed, JA's judgment, adding that the demolition, though in contempt of a court order, was not unlawful because the Council was enforcing planning laws, and that the redress lay in contempt proceedings; exemplary damages were not justified as the Council's actions were not calculated to profit it.

I concur that this appeal should be allowed and that orders be made as proposed by Hon. J. Mohammed, JA.p. 7
GI
majority
On appeal from
Environment and Land Court of Kenya at Eldoret
Eldoret ELC Cause No. 207 of 2012
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court; appeal from ELC Cause No. 207 of 2012

Relief refused

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Retention of the trial court's award of exemplary damages of Kshs 15,000,000

The appellant's conduct was not oppressive, arbitrary or unconstitutional; the demolition was statutorily sanctioned and the respondent had due notice.

p. 5

Retention of general damages for trespass of Kshs 500,000

The demolition was authorized by statute and the respondent had due notice, so no damages for trespass could arise.

p. 6

Costs

Costs of this appeal awarded to the appellant ("I would award the costs of this appeal to the appellant")

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, I would allow the appeal and set aside the award of exemplary damages of Kshs 15,000,000/= and general damages for trespass of Kshs 500,000/=. I would award the costs of this appeal to the appellant.
p. 6Disposition - appeal allowed, damages set aside, costs
I concur that this appeal should be allowed and that orders be made as proposed by Hon. J. Mohammed, JA.
p. 7Concurrence of Okwengu, JA with the proposed orders
The demolition was an action whose redress was in contempt proceedings and not in action for damages.
p. 6Remedy for disobedience of court order lies in contempt, not damages
trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership
p. 6Ingredients of the tort of trespass to land
The object of exemplary damages is to punish and deter.
p. 4Nature and purpose of exemplary damages

Issues in the judgment

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minor

The leading judgment is dated 3rd February 2020, but the concurring judgment of Okwengu, JA is dated 3rd April 2020 - a two-month discrepancy in delivery dates on the face of the record.

minor

The judgment records that it is a single judgment of the court, but only two of the three named judges (J. Mohammed and Okwengu) signed opinions; no signature or separate opinion of Githinji, JA appears.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Municipal Council of Eldoret v Titus Gatitu Njau [2020] KECA 782 (KLR)", Case Analysis (2020). Civil Appeal No. 106 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/782/eng@2020-04-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.