Automated Summary
Key Facts
The case involves the demolition of a structure on Plot No. 3082 by the County Council of Gusii. The appellant, Samwel Mandere Ogeto, claimed ownership of the land and constructed a temporary store using timber and iron sheets without following the approved permanent building plans. The respondents argued the structure was unlawful due to lack of approved plans and unconfirmed site location. The lower court found the structure illegal and dismissed the appeal, affirming the respondents' right to enforce land use regulations. The appeal to the High Court was also dismissed, citing no evidence of lawful construction or ownership proof.
Issues
- Whether the respondents' demolition of the appellant's structure on Plot No. 3082 was lawful due to lack of approved plans and unconfirmed construction site
- Whether the appellant is entitled to compensation for the demolished building (Kshs. 314,000/=), return of seized items (Kshs. 89,250/=), and a permanent injunction against the respondents, given the structure's illegality and insufficient evidence for damages
Holdings
- The court agreed no compensation could be awarded for seized items or the demolished building. The appellant failed to prove ownership, value, or legality of the structure. Special damages must be strictly proved, and the illegal building principle 'ex dolus malo non oritur actio' barred compensation.
- The court found the lower court did not determine land ownership, invalidating the appellant's appeal on this ground. The lower court explicitly stated ownership was not an issue for determination, focusing instead on the legality of the demolition.
- The court upheld the lower court's finding that the structure on Plot No. 3082 was illegal due to lack of approval and unconfirmed site. The structure was a temporary store built with timber and iron sheets, not the approved permanent building. Overwhelming evidence confirmed no approved plans were used.
- The court affirmed the lower court's refusal to grant a permanent injunction. The respondents' demolition was lawful under their statutory mandate, and no evidence showed wrongful exercise of power. An injunction could not restrain lawful statutory action.
- The court dismissed other appeal grounds as without merit. The lower court properly evaluated evidence, addressed all issues, and complied with procedural rules. No extraneous matters or procedural errors were demonstrated.
Remedies
- The respondents were ordered to pay the costs of the appeal, as the court upheld the lower court's decision and found the appellant's case lacked merit.
- The appeal was dismissed with costs to the respondents, as the lower court's decision was upheld and no other reliefs were granted.
Legal Principles
The court applied the principle that no person should benefit from their own wrongdoing ('ex dolomalo non oritur actio'), holding that the appellant could not claim compensation for an illegally constructed structure.
Precedent Name
- William Kiplangat Maritim & Another vs. United Millers Ltd
- Charles Sande vs. Kenya Co-operative Creameries Ltd
- Makube vs. Nyamuro
- Nabro Properties Ltd. vs. Sky Structures Ltd. & 2 others
Cited Statute
- Civil Procedure Act, Cap. 21 Laws of Kenya
- Civil Procedure Rules, 2010
Judge Name
S. Okong'o
Passage Text
- In conclusion, I am unable to fault the decision of the lower court that is the subject of this appeal. The appellant's appeal therefore lacks merit and the same is dismissed with costs to the respondents.
- The lower court did not therefore fall into any error in its finding that the structure was illegal. Even if it is assumed for argument sake that the structure was approved as contended by the appellant which is not the case, the approval that was granted to the appellant was subject to the respondents confirming to the appellant the site on which to put up the structure. This did not happen and as such the structure was put up contrary to the terms on which it was approved.
- ...It is now trite law that special damages must not only be pleaded but must also be specifically proved. We do not think that we need to cite any authority for this simple and hackneyed proposition of law.