Titus Gatitu Njau v Municipal Council of Eldoret [2015] KEELC 670 (KLR)
The bottom line
#Kenya's Environment and Land Court fined Eldoret's municipal council KShs 15.5 million for demolishing a building despite a court order stopping the demolition.
What this practically means
#Executive summary
#Key legal issues
#Validity of service of the interim injunction order
Service on an officer working in the office of the Town Clerk was proper; Section 263A of the Local Government Act had no bearing on service of process.
The process server served the order on Mr Sitienei, Deputy Town Clerk, and the defendant's witness agreed legal process was served in the Town Clerk's office. The defendant's reliance on Section 263A of the Local Government Act was misplaced as that provision concerns execution of judgments against local authorities, not service of process. The court found the defendant knew of the order before demolishing.
Justifiability of the demolition
The demolition was improper because it was carried out in the face of a subsisting court order, regardless of whether the building breached planning regulations.
While the defendant might with appropriate notice have been entitled to demolish a building not conforming to the permitted user, the existence of the injunction made the demolition unlawful. The claim that the plot was a public utility was unsupported by any pleading or evidence, and ownership was conceded.
Entitlement to damages for lost income and reconstruction
Both claims disallowed as they would benefit the plaintiff from an unauthorized user of the premises.
The premises were leased for use as a petrol station. The plaintiff's continued commercial use was a breach of the lease terms; the defendant's issuance of business licences did not waive the user restriction. Damages for reconstruction would fund a building for a non-permitted user.
Exemplary damages for disobedience of a court order
A sum of Kshs. 15,000,000/= awarded as exemplary damages for flagrant disobedience of the injunction.
Applying Rookes v Barnard as approved in Obongo v Kisumu Council, the defendant's conduct in demolishing the building in the face of a court order was oppressive and repulsive. The award was meant to punish the defendant and send a message that court orders must be obeyed, taking into account the value of the property and the defendant's failure to make amends.
General damages for trespass
Kshs. 500,000/= awarded as general damages for trespass.
Even though the claims for lost income and reconstruction failed, the defendant's entry onto and demolition of the plaintiff's building amounted to trespass, warranting general damages assessed on the nature of the property and the trespass.
Legal principles established
#- A party is bound to obey a court order whether or not it agrees with it, and defiance of an order justifies exemplary damages
- Exemplary damages may be awarded where there is oppressive, arbitrary or unconstitutional action by servants of government, or where the defendant's conduct was calculated to procure benefit at the plaintiff's expense
Court orders
#- 1.Judgment entered for the plaintiff against the defendant in the sum of Kshs. 15,500,000/= comprising Kshs. 500,000/= general damages for trespass and Kshs. 15,000,000/= exemplary damages
- 2.Declaration that as against the defendant, the plaintiff is the owner of the land parcel Eldoret Municipality/Block 4/337
- 3.Permanent injunction restraining the defendant from interfering with the plaintiff's occupation of Eldoret Municipality/Block 4/337
- 4.Plaintiff awarded costs of the suit
- 5.Liability of the judgment shouldered by the County Government of Uasin Gishu, successors of the Municipal Council of Eldoret
- Jurisdiction invoked
- Environment and Land Court jurisdiction (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Titus Gatitu Njau v Municipal Council of Eldoret [2015] KEELC 670 (KLR)", Case Analysis (2015). Environment & Land Case No. 207 of 2012 (Formerly HCC 35 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/670/eng@2015-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.