Court: Demolition of property should be last resort in any dispute

The Environment and Land Court has ruled that demolition of property is a remedy that should be used sparingly and as a last recourse.

Alternatively, the court noted it can be used probably where despite a developer being given ample opportunity to regularise the development has failed, and also when the development is a threat to the environment or infringes on the rights of others.

In a judgment where he ordered the county government of Kilifi to pay Mr Farid Faraj Sh4 million as compensation for demolishing a boundary wall on his prime beach plot in Mtwapa, Justice Sila Munyao said rushing to demolish a property without first hearing the developer is insensitive and extreme.

“Developments are by their nature expensive ventures for which persons have made immense sacrifice, demolition will not only cause actual loss of investment but may shatter a person and bring him down to the depths of hopelessness and depression,” said Justice Munyao.

Justice Munyao, who also ordered the county government to pay Mr Faraj Sh1 million as general damages for trespass, said the devolved unit rushed and demolished the boundary wall without giving him an opportunity to present his case.

He said that even where a county government has powers to issue notices seeking to force people who may be carrying out developments without permission to stop and restore the land to its original condition, the notices must obey the statutory timelines.

The judge said that when authorities demolish property before the lapse of a proper notice, then they are making an illegal entry that amounts to trespass, and that the law does not give them permission to enter the property before the end of 90 days’ notice.

He said Mr Faraj was never given adequate opportunity by the County Government of Kilifi to explain his development and demonstrate why it should remain.

“Maybe if the defendant had first heard the plaintiff they would not have moved to demolish the wall,” said Justice Munyao.
Not only were the notices by the county government to Mr Faraj to demolish his perimeter wall illegal, but also moving in and demolishing it, he added.

“The legality or not of the development can only be explored within time frames given in proper notices and by the institutions named therein, which are, the liaison committees or the courts,” said Justice Munyao.

The judge said that when a developer is heard the county government may waive the need for approval or grant it, despite late application, especially for those that can be considered ‘innocent’ developments that cause no harm, such as a boundary wall.

Mr Faraj had told the court that he is the registered owner of the beach property having bought it for Sh11 million in 2008 and that at the time, it had a boundary wall around it with an entrance gate.

Sometime in 2019, the land was invaded by hooligans who demolished the wall, an incident that was reported at the Mtwapa police station.

In February 2021, he put up the wall and that despite being aware that the property had a boundary wall, the county government, without any justifiable reason, issued an enforcement notice threatening to demolish it.

The plaintiff said that on obtaining orders suspending any demolishing and serving it upon the county government officials, the county demolished the wall all the same.

The county government denied all the allegations by Mr Faraj and said it is mandated to undertake routine inspections of buildings and other structures within its area of jurisdiction and providing approvals for constructions.

The county government said it found out that the plaintiff was constructing a boundary wall without approval as required by the Physical Planning Act before a notice was sent requiring him to produce a notice of compliance, which he did not.

According to the county government, it had no option other than to issue an enforcement notice as Mr Faraj had failed to obtain relevant approvals before the construction.

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