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Court of AppealPartially AllowedConstitutional Petition No 16 of 2019 (appeal from High Court, Mombasa)

County Government of Mombasa v Kanyifa & 5 others (Civil Appeal 76 of 2020) [2023] KECA 813 (KLR)

Court of Appeal of Kenya
7 July 2023
8,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal overturned a Kshs 25 million award against Mombasa County because the beach traders could not actually prove their rights were violated.

What this practically means

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Executive summary

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This is a first appeal by the County Government of Mombasa against the judgment of Ogola, J in the High Court at Mombasa, which had declared in favour of three beach traders (representing over 400 members of the North Coast Beach Management Committee at Pirates Beach) that their rights to security of the person, equality, and fair administrative action were violated by a violent eviction from the public beach between October and December 2018, awarding Kshs 25,000,000 general damages under article 47. The High Court also allowed the cross-petition of the Minister of National Heritage and Culture, declaring the respondents had no rights over the suit property and issuing a permanent injunction. The Court of Appeal re-evaluated the evidence afresh. It upheld the respondents' standing under articles 22 and 258 and confirmed the High Court's Bill of Rights jurisdiction despite the land-law subject matter. It also held that an unresolved jurisdictional objection must be determined at a preliminary stage. On the merits, however, the court found the respondents had received notice and stakeholder engagement, and had failed to prove violent eviction or any loss, applying the Anarita Karimi Njeru specificity test and the rule that special damages must be specifically pleaded and proved. The damages award of Kshs 25,000,000 therefore could not stand. The court also corrected the erroneous costs order made against the appellant in the cross-petition, to which it was not a party. The appeal was allowed, declarations (a) to (e) and the cross-petition costs order were set aside, and, as public interest litigation, no order as to costs was made. The judgment binds lower courts on standing, the imperative of determining jurisdiction first, and the pleading and proof requirements for constitutional damages.

Questions the Court framed

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

  1. 1.Whether the 1st to 3rd respondents had locus standi to file the Petition
  2. 2.Whether the 1st to 3rd respondents proved that any of their rights were infringed
  3. 3.Whether the 1st to 3rd respondents were entitled to an award of damages
  4. 4.Who should meet the costs
  5. 5.Whether the High Court had jurisdiction to entertain the petition (as opposed to the Environment and Land Court)

Key legal issues

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01

Locus standi of the 1st to 3rd respondents to institute the petition on behalf of a CBO

Holding

The respondents had locus standi on their own behalf and on behalf of their membership under article 258 of the Constitution; the petition raised Bill of Rights issues

Reasoning

The court read article 258 in its full effect, which permits any person, association, or a member of a group or class to enforce the Constitution. Since the petition concerned threats of and contraventions of the Bill of Rights, article 22 read with article 258 conferred standing, and formalities such as Order 1 Rule 8 of the Civil Procedure Rules were not a bar. The appellant was also aware of the association as far back as January 2018.

p. 11
02

Jurisdiction of the High Court over the petition

Holding

The High Court had jurisdiction to hear the petition as it sought enforcement of Bill of Rights; the fact that land issues were involved did not oust that jurisdiction

Reasoning

Jurisdiction stems from the Constitution and statute. Article 165(3)(b) confers on the High Court jurisdiction to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. The reliefs were declaratory and grounded in articles 29(c), 27(1), 40 and 47. Nothing turned on the point that the subject matter touched on use of land.

p. 10
03

Whether the respondents proved infringement of their constitutional rights

Holding

The respondents did not prove the pleaded violations; there was notice and stakeholder engagement, and no proof of violent eviction or loss

Reasoning

Applying the first appellate duty in Selle v Associated Motor Boat Co, the court re-evaluated the affidavit evidence. There were stakeholder meetings and notice to the traders, so fair administrative action under article 47 was given. The date and manner of the alleged evictions were vague, and no evidence of eviction or loss was adduced, so the pleaded violations failed on proof.

p. 13
04

Whether the award of Kshs 25,000,000 general damages should stand

Holding

No; the award could not stand because the underlying violation was not proved, and special damages were neither pleaded nor proved

Reasoning

Following Provincial Insurance Co EA Ltd v Nandwa, special damages must be specifically pleaded and proved. The trial court itself found the loss not proved. Having found no breach of article 47, the compensation award for its violation had no foundation and was set aside.

p. 15
05

Costs of the cross-petition

Holding

The trial court erred in condemning the appellant to pay the costs of the cross-petition when it was not a party to it

Reasoning

Costs follow the event, but the parties to the cross-petition were the 4th, 5th and 6th respondents as cross-petitioners against the 1st to 3rd respondents. The appellant was not a party to the cross-petition, so the costs order against it was made in error and was set aside.

p. 15

Legal principles established

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  • A challenge to the jurisdiction of a court must be heard and determined at a preliminary stage of the proceedings, or as soon as it is raised
  • Article 258 of the Constitution empowers any person to institute a constitutional suit on their own behalf, on behalf of another, in the interest of a group, in the public interest, or through an association acting for its members
  • Special damages must be specifically pleaded before they can be awarded
  • A party claiming redress for violation of constitutional rights must satisfy the Anarita Karimi Njeru specificity test - pleading with reasonable precision the provision infringed and the manner of infringement
  • No law permits violent eviction of persons whose occupational permits have expired; an aggrieved party must seek a court order to effect an eviction

Court orders

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  1. 1.The appellant's appeal against the judgment of the High Court (Ogola, J) dated 27th July 2020 is allowed
  2. 2.Declarations and orders numbers (a) to (e) of the judgment are set aside
  3. 3.The order condemning the appellant to meet the costs for the cross-petition is set aside
  4. 4.As this was a public interest litigation, no order as to costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya, Mombasa
Constitutional Petition No 16 of 2019
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Court of Appeal Act (appeal against a judgment of the High Court exercising its article 165(3) Bill of Rights jurisdiction)

Relief refused

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Award of Kshs 25,000,000 general damages for violation of fair administrative action rights

The respondents did not prove breach of the right to fair administrative action

p. 15

Special damages of Kshs 27,889,950 for unlawful eviction

Not specifically pleaded or proved; no receipts, photographs or viva voce evidence of loss

p. 15

Costs

As this was a public interest litigation, the court made no order as to costs (each party to bear its own costs); the order condemning the appellant to pay costs of the cross-petition was set aside.

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.

Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence.
p. 9Primacy of jurisdiction (Lilian S v Caltex Oil)
A challenge to jurisdiction of a court to hear a matter is so grave that it must be heard and determine at a preliminary stage of the proceedings, or as soon as the same has been raised.
p. 9Duty to determine jurisdictional objections first
the objections, if any that the 1st to 3rd respondents had over the supplementary afidavit should have been raised before the trial court. They cannot be allowed to challenge it at this stage, as clearly it is an afterthought.
p. 8Appellate court confined to issues canvassed below
The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary remedy to be made in only the most appropriate cases.
p. 14Constitutional remedies - vindication over compensation (Dendy)
It is now well settled that special damages need to be specifically pleaded before they can be awarded.
p. 14Special damages must be specifically pleaded
The appellant’s appeal against the judgment of the High Court [ Ogola, J] dated 27th July 2020 is allowed.
p. 15Final orders - appeal allowed
As this was a public interest litigation, we make no order as to costs.
p. 15Final orders - costs

Issues in the judgment

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minor

The judgment inconsistently identifies the Commissioner for Lands as both the 4th and 5th respondent in the petition

minor

The affidavit evidence on the date of the evictions is internally inconsistent - the petition pleads October to December 2018 while the court records the 2nd respondent's affidavit as deposing to 2019

minor

Submissions by the appellant are recorded as filed on September 24, 2022, though the appeal was heard on 21st November 2022 and Mr Tajbhai relied on submissions dated 7th November 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "County Government of Mombasa v Kanyifa & 5 others (Civil Appeal 76 of 2020) [2023] KECA 813 (KLR)", Case Analysis (2023). Constitutional Petition No 16 of 2019 (appeal from High Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/813/eng@2023-07-07

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