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Court of AppealPartially AllowedCivil Appeal (Malindi ELC Case No. 56 of 2016 appeal)· [2024] KECA 364 (KLR)

Kenya Wildlife Service v Sea Star Malindi Limited (Civil Appeal E018 of 2022) [2024] KECA 364 (KLR)

Court of Appeal
12 April 2024
11,972 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

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The Court of Appeal cut KWS's damages bill, reducing general damages to Kshs 3 million but upholding Kshs 90 million in reconstruction costs against it.

What this practically means

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Executive summary

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This Court of Appeal at Mombasa, in a first appeal against the judgment of Olola J. in Malindi ELC Case No. 56 of 2016, determined an appeal by the Kenya Wildlife Service (KWS) against awards of Kshs 90,000,000 as costs of reconstruction, Kshs 30,000,000 general damages, and interest at commercial rates to Sea Star Malindi Limited, arising from KWS's unlawful stoppage of Sea Star's hotel construction on LR 3170 Malindi from August 1997 until the quashing of KWS's decision in judicial review proceedings on 8th November 2002. The Court (Nyamweya JA, writing the majority judgment, with Odunga JA concurring) held that the trial Judge did not err in treating liability as settled by the unappealed judicial review decision, since judicial review and findings on liability are not mutually exclusive. The Court upheld the special damages award of Kshs 90,000,000 for reconstruction costs, holding the pleadings sufficiently particular and the Quantity Surveyor's report sufficient proof, the claimant benefiting from uncertainty caused by the defendant's wrongdoing. However, it found the award of Kshs 30,000,000 in general damages excessive: the losses compensated were in the nature of special damages, and general damages for the constitutional violation should have been nominal, substituting Kshs 3,000,000. Interest at commercial rates was set aside and replaced with court rates. Gatembu Kairu JA dissented, preferring to set aside all quantum awards and remit the matter to the ELC for consolidation with Malindi ELC Case No. 47 of 2006. The appeal was partially allowed, with KWS to pay Sea Star's costs in the trial Court and on appeal.

Key legal issues

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01

Reliance on a prior unappealed judicial review decision to settle liability in a subsequent suit

Holding

The trial Court did not err; the question of KWS's liability was settled by the unappealed judicial review judgment which found KWS's decision ultra vires and an undue interference with Sea Star's property, and KWS adduced no new facts or evidence to impeach it.

Reasoning

The judicial review decision of 8 November 2002 involved the same facts and parties as the trial suit. KWS neither appealed nor reviewed that decision. Judicial review concerns the lawfulness of a public authority's decision and allocates responsibility for illegality, and is not mutually exclusive with findings on liability; limited merit review is permissible. The trial Judge gave valid reasons for treating liability as settled, including the absence of any new facts or additional evidence from KWS.

p. 7
02

Whether the award of Kshs 30,000,000 as general damages was justified

Holding

The award was a misapplication: the losses being compensated (loss of profits and expenses) were quantifiable monetary losses in the nature of special damages requiring strict proof; general damages for the constitutional violation should have been nominal.

Reasoning

Loss of profits and out-of-pocket expenses are special damages that must be pleaded and strictly proved. General damages for infringement of a constitutional right are discretionary and depend on the circumstances, reflecting the sense of public outrage and deterring further breaches, and require no proof of harm. Since special damages were also awarded for the actual loss, an award of Kshs 30,000,000 was unjustifiably excessive; nominal damages of Kshs 3,000,000 sufficed to vindicate Sea Star's constitutional right to property.

p. 10
03

Whether special damages for costs of reconstruction were properly pleaded and strictly proved

Holding

Yes; the pleadings were sufficiently particular and the Quantity Surveyor's report and Bills of Quantities provided sufficient proof, so the award of Kshs 90,000,000 was upheld.

Reasoning

A claimant is only debarred from proving special damages where it fails to plead the claim at all or with sufficient particularity. Sea Star's pleadings quantified the loss and notified that some would be quantified by a Quantity Surveyor, so KWS knew the case to meet. Where quantification involves a hypothetical exercise caused by the defendant's wrongdoing, the court makes the best attempt to evaluate all chances, making reasonable assumptions erring on the side of generosity to the claimant; difficulty of proof does not dispense with necessity of proof but demands reasonable certainty, not certainty.

p. 15
04

Interest on the awards: rate and period

Holding

Interest at commercial rates was set aside and replaced with court rates, special damages attracting interest from the date of filing suit and general damages from the date of the trial Court's judgment.

Reasoning

No evidence of the credit facility, the prevailing commercial rate, or any justification for commercial rates was provided. Under section 26(1) of the Civil Procedure Act the court may order interest at such rate as it deems reasonable, but the discretion must not be capricious or based on whim. The trial Judge failed to give a basis for commercial rates and failed to apply the principles on the periods for which interest on special and general damages runs.

p. 16

Legal principles established

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  • Judicial review and findings on liability are not mutually exclusive, since judicial review is concerned with the liability or otherwise of constitutional, statutory and administrative bodies in the exercise of their functions, and a court may undertake limited merit review in determining liability within the confines of grounds of judicial review.
  • A claim for loss of enjoyment of land can only be made by way of special damages upon proof of the loss incurred; general damages for infringement of a constitutional right are discretionary and can be made with or without proof of loss or damage.
  • Nominal damages are awarded for the purposes of declaring and vindicating legal and constitutional rights, and do not require proof of harm.
  • Interest should be awarded at court rates unless there is an agreement, statutory right, or mercantile usage establishing a different rate; a trial Judge must provide the basis and applicable rate where awarding interest at commercial rates.
  • A claimant should benefit from any uncertainty surrounding proof of consequential loss where that uncertainty has been caused by the wrongdoing of the other party; the standard of proof of loss demands evidence from which the existence of damage can be reasonably inferred, not certainty.

Court orders

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  1. 1.Set aside the trial Judge's award of general damages of Kshs 30,000,000 and interest thereon at commercial rates
  2. 2.Substituted an award of nominal general damages of Kshs 3,000,000 with interest at court rates from the date of judgment by the trial Court until payment in full
  3. 3.Affirmed and upheld the award of costs of reconstruction of Kshs 90,000,000
  4. 4.Substituted the order awarding interest on the Kshs 90,000,000 at commercial rates with an order awarding interest at court rates from the date of filing of the suit in the trial Court until payment in full
  5. 5.KWS to pay Sea Star the costs of the proceedings in the trial Court and of this appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 23(3)(e)
  • Constitution of Kenyasection 75 (former Constitution)
  • Wildlife (Conservation and Management) Actsection 6(1)
  • Land Acquisition Act
  • Public Authorities Limitation Actsection 3(1)
  • Appellate Jurisdiction Actsection 3(2)
  • Civil Procedure Actsection 26(1)
  • Legal Notice No. 99 of 1968

Cases cited (29)

  • Selle and Another vs Associated Motor Boat Ltd & others
    (1968) EA 123
  • Jabane vs Olenja
    (1968) KLR 661
  • Mbogo & Another vs Shah
    (1968) EA 93
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary, Transport and Infrastructure & 3 Others
    [2021] eKLR
  • Saisi & 7 Others vs Director of Public Prosecutions & 2 Others (Petition 39 & 40 of 2019 (Consolidated))
    [2023] KESC 6 (KLR)
  • Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini vs A.M. Lubia & Olive Lubia
    (1982-88) I KAR 727
  • Ilango Vs Manyoka
    [1967] E.A. 705
  • Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto
    [1970] E.A. 414
  • Siree vs Lake Turkana El Molo Lodges Limited
    (2002) 2 EA 521
  • Parliamentary Service Commission vs Martin Nyaga Wambora & Others, Supreme Court Application No. 8 of 2017
    (2017) eKLR
  • Alfarus Muli vs Lucy M Lavuta & Another, Civil Appeal (Nairobi) No. 47 of 1997
    (1997) eKLR
  • National Social Security Fund vs Sifa International Limited
    [2016] eKLR
  • Ntanda Zeli Fose vs Minister of Safety and Security
    1996 (2) BCLR 232 (W)
  • Siewchand Ramanoop vs The AG of T&T, PC Appeal No. 13 of 2004
  • Jogoo Kimakia Bus Services Ltd vs Electrocom International Ltd
    [1992] KLR 177
  • 'Medina' and the 'Mediana'
    [1900] AC 113
  • Ken Odondi & 2 Others vs James Okoth Omburah T/A Okoth Omburah & Company advocates
    [2013] eKLR
  • Ol Pejeta Ranching Limited vs David Wanjau Muhoro
    [2017] eKLR
  • Peter Ndegwa Kiai t/a Pema Wines & Spirits vs Attorney General & 2 Others (Civil Appeal 243 of 2017)
    [2021] KECA 328 (KLR)
  • Ryce Motors Limited and Another vs Muroki
    (1995-98) 2 EA 363
  • Sea Star Malindi Limited vs County Government of Kilifi (Civil Appeal No. 121 of 2019, consolidated with Civil Appeal No. 95 of 2019)
    (2022) KECA 22 KLR
  • Ratcliffe vs Evans
    (1892) 2 QB 524
  • Parabola Investment Limited & Another vs Browallia Cal Limited
    (2011) QB 477
  • Yam Seng Pte Ltd vs International Trade Corp. Ltd
    (2013) 1 Lloyd's Rep 526
  • Musicraft Manufacturer (K) Limited vs Doughty Limited
    (1992) KLR 541
  • Highway Furniture Mart Limited vs the Permanent Secretary and Another
    (2006) 2 EA 94
  • Alba Petroleum Limited vs Total Marketing Kenya Limited
    [2019] eKLR
  • Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited vs. Janevams Limited
    (2015) eKLR
  • Sea Star Malindi Ltd vs Kenya Wildlife Services & 2 Others, Nairobi HCC Misc. Application No. 982 of 1997
On appeal from
Environment and Land Court, Malindi
Malindi ELC Case No. 56 of 2016 (originally Nairobi H.C Civil Suit No. 579 of 1998)
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction (section 3(2) of the Appellate Jurisdiction Act invoked by the appellant)

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, "Kenya Wildlife Service v Sea Star Malindi Limited (Civil Appeal E018 of 2022) [2024] KECA 364 (KLR)", Case Analysis (2024). Civil Appeal (Malindi ELC Case No. 56 of 2016 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/364/eng@2024-04-12

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