Land law-sale agreement-declaration that LR No 450 Ol Joro Orok West belongs to the plaintiff and that defendants 1, 3, 4 and 5 are trespassers-declaration that the sale agreement between the plaintiff and the defendant became valid on the first defendants failure to honour his part of the agreement-claims that the plaintiff since filing the case had become of unsound mind and could not prosecute the case-proof of-where the land in dispute is in a settlement area

Land Law-Trespass-suit for a declaration that the land in question belonged to the plaintiff and the defendants were tress passers-where the land in dispute was a settlement area-where the evidence showed that the plaintiff had sold the land to the first defendant- whether the plaintiff had proved his case on a balance of probabilities

Samuel Mwangi Thuku v Ol Kalou Town Council

High Court, at Nakuru March 14, 1993

Nambuye J

Civil Suit No 378 of 1989

Damages – special damages – assessment of – where one does not produce evidence to support the claim for damages – whether the Court can make reasonable assessment of special damages.

The plaintiff herein filed plaint on 6.12.1989 in which he averred that he owned a kiosk vide Min 53/87. He contented that he submitted building plans for the construction of the same which were duly approved by the defendant. That subsequent to the said approval the said building as per specifications of the approved plan by 6.10.89 the plaintiff alleged that he had incurred upto Kshs 200,000 or thereabouts towards the said construction. He further stated that on 6/10/1989 the defendant unlawfully and maliciously demolished the plaintiff’s building and the plaintiff suffered damages. He contented that the said demolition was ultra vires and he sought damages to the tune of Kshs 200,000 being the value of the subsect kiosk costs, interest at court rates and any other relief that the Court deemed fit to grant.

It was contented for the defendant that the plaintiff was granted with temporary licence to construct temporary kiosk, but he proceeded to construct kiosk with permanent materials in flagrant breach of defendant’s by laws.

Held:

1. There was no note or written memorandum from the defendant defining what is meant by temporary materials. What came out clearly was that it was generally understood that such materials included timber, off cuts, mud etc.

2. It did not matter what materials the kiosk was constructed of as the overriding factor was that such a construction whether made of stone or otherwise were temporary and in the event of the demolition, the owner could not claim any compensation for the structure. Therefore the demolition for the reason given by the defendant was not justified.

3. The basis for assessing damages is that there must not be so inordinately low or so inordinately high. The onus to prove the loss is on the plaintiff.

Judgment entered for the plaintiff.

Cases

1. Henry Hidaya Ilanga v Manyama Manyoka [1961] EA 705

2. Kampala City Council v Nakaye [1972] EA 446

Statutes

Local Government Act (cap 265) sections 210, 211, 269