County Government of Mombasa v Kanyifa & 5 others (Civil Appeal 76 of 2020) [2023] KECA 813 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st to 3rd respondents had locus standi to file the Petition
- 2.Whether the 1st to 3rd respondents proved that any of their rights were infringed
- 3.Whether the 1st to 3rd respondents were entitled to an award of damages
- 4.Who should meet the costs
- 5.Whether the High Court had jurisdiction to entertain the petition (as opposed to the Environment and Land Court)
Key legal issues
#Locus standi of the 1st to 3rd respondents to institute the petition on behalf of a CBO
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
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.
Jurisdiction of the High Court over the petition
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
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.
Whether the respondents proved infringement of their constitutional rights
The respondents did not prove the pleaded violations; there was notice and stakeholder engagement, and no proof of violent eviction or loss
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.
Whether the award of Kshs 25,000,000 general damages should stand
No; the award could not stand because the underlying violation was not proved, and special damages were neither pleaded nor proved
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.
Costs of the cross-petition
The trial court erred in condemning the appellant to pay the costs of the cross-petition when it was not a party to it
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.
Legal principles established
#- 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
#- 1.The appellant's appeal against the judgment of the High Court (Ogola, J) dated 27th July 2020 is allowed
- 2.Declarations and orders numbers (a) to (e) of the judgment are set aside
- 3.The order condemning the appellant to meet the costs for the cross-petition is set aside
- 4.As this was a public interest litigation, no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Special damages of Kshs 27,889,950 for unlawful eviction
Not specifically pleaded or proved; no receipts, photographs or viva voce evidence of loss
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
#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.
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.
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.
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.
It is now well settled that special damages need to be specifically pleaded before they can be awarded.
The appellant’s appeal against the judgment of the High Court [ Ogola, J] dated 27th July 2020 is allowed.
As this was a public interest litigation, we make no order as to costs.
Issues in the judgment
#The judgment inconsistently identifies the Commissioner for Lands as both the 4th and 5th respondent in the petition
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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.