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ELCPartially AllowedMalindi HCCC No. 579 of 1998 (Further Re-Amended Plaint)· [2018] KEELC 1804 (KLR)

Sea Star Malindi Ltd v Kenya Wildlife Services & another [2018] KEELC 1804 (KLR)

High Court of Kenya (Environment and Land division as constituted at Malindi)
31 July 2018
4,874 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ordered KWS to pay a Malindi hotel developer Sh120 million for wrongfully halting construction, but refused extra damages against the individual officer.

What this practically means

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Executive summary

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The Plaintiff, Sea Star Malindi Ltd, a company incorporated in 1994 by an Italian director, purchased Plot No. 3170 Malindi for Kshs 4 million and commenced construction of a tourist hotel with approved building plans. In 1997 the Kenya Wildlife Service (1st Defendant), through its Director Dr. David Western (2nd Defendant), issued letters withdrawing special permission and reinstating a prohibition on construction within 100 feet of the high water mark, and sent armed game wardens to stop the works and guard the site. The Plaintiff sought permanent restraint, declarations, damages for the wrongful stoppage, loss of profits, exemplary damages, interest and costs. By the time of trial, the Plaintiff had abandoned some prayers settled in earlier proceedings. Liability was governed by the decision of Onyango Otieno J on 8th November 2002 in Nairobi HC Misc Application No. 982 of 1997, which quashed KWS's decision as ultra vires and an undue interference with the Plaintiff's property. That decision was neither appealed nor reviewed, and the Defendants adduced no new evidence to impeach it, so the court confined itself to quantum. The Defendants called no evidence. The court held that a defendant's failure to testify does not automatically prove the plaintiff's case, and critically appraised the Quantity Surveyor's estimates as figures based on remnants of demolished structures rather than sums actually expended. Applying the principle of mitigation, the court allowed three years after the 2002 ruling for the Plaintiff to resume the project, and awarded Kshs 90,000,000/= as reconstruction cost and Kshs 30,000,000/= as general damages in place of the claimed US$75,000 monthly loss of profits. The 2nd Defendant was found not personally liable for acts done as Director of the 1st Defendant. Interest was awarded at commercial bank rates until payment in full, together with costs of the suit.

Key legal issues

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01

Effect of the judicial review decision on liability

Holding

The unappealed, unreviewed decision of 8th November 2002 quashing the KWS decision settled liability; the court's task was only to assess quantum

Reasoning

The judicial review application was decided during the pendency of this suit and quashed the 1st Defendant's decision banning construction. That decision was neither appealed nor reviewed, and the Defendants adduced no new facts or evidence to impeach its findings. The findings that the 1st Defendant was liable for the wrongful stoppage therefore stand, leaving quantum alone for determination.

p. 4
02

Proof of quantum where the defence calls no evidence

Holding

The plaintiff must still prove its loss on a balance of probabilities; failure by the defendant to testify does not make the plaintiff's figures conclusive

Reasoning

Relying on Charterhouse Bank Ltd v Frank N. Kamau, the court held that the defendant's failure to testify does not conflate the onus on the plaintiff to prove its claim. The Quantity Surveyor's estimates were examined critically: he visited the site only in 2014 after demolition, could not account for structures covered by bushes, and conceded figures could differ.

p. 5
03

Personal liability of a public officer (2nd Defendant)

Holding

The 2nd Defendant, acting as Director of the 1st Defendant, was not personally liable; the plaintiff failed to show he acted outside authority or with ill motive

Reasoning

Nothing suggested that in writing the letters or instructing game wardens the 2nd Defendant acted other than as Director of the 1st Defendant. The plaintiff did not demonstrate he acted outside his authority or was actuated by ill motive, so as a public officer he bore no personal liability for the acts or omissions complained of.

p. 5
04

Mitigation of loss

Holding

The plaintiff should have resumed the project after the 2002 judicial review decision; damages were assessed to 2005 with this in mind

Reasoning

Following the 2002 quashing decision, nothing stopped the plaintiff from continuing the project and mitigating its losses. The court found the project had been interrupted for five years and the plaintiff should have taken no more than three years to reorganize, taking the assessment date to 2005, informing the award of Kshs 90,000,000/=.

p. 5

Legal principles established

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  • A defendant's failure to adduce evidence does not automatically prove the plaintiff's case on a balance of probabilities
  • Expert evidence is opinion evidence whose weight must be assessed in the context of all other evidence
  • Damages compensate for established loss and reasonableness is linked to the loss sustained

Court orders

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  1. 1.Kshs 90,000,000/= awarded to the Plaintiff as the cost of reconstruction of the hotel
  2. 2.Kshs 30,000,000/= awarded as general damages
  3. 3.Interest on both awards at commercial bank rates until payment in full
  4. 4.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Wildlife (Conservation and Management) ActCap 376
  • Public Authorities Limitation ActSection 3(1)
  • Government Lands ActCap 280, Sections 2 and 8B
  • Constitution of Kenya (Amended) Act No. 28 of 1964Section 20
  • National Park of Kenya ActCap 377 (1962 Ed), as amended by LN 743 of 1963, LN 303 of 1964 and Act No. 21 of 1968
  • Legal Notice No. 99 of 1968-

Cases cited (5)

  • Charter house Bank Ltd vs Frank N. Kamau
    (2016) eKLR
  • Stephen Kinini Wang'ondu vs The Ark Limited
    Civil Appeal No. 2 of 2014 (2016) eKLR
  • Ruxley Electronics & Construction Ltd vs Forsyth
    (1995) 3 All ER 268
  • Paul Kipsang Koech & Another vs Titus Osule Osore
    (2013) eKLR
  • Sea Star Malindi vs Kenya Wildlife Service & 2 Others (Nairobi HCC Misc Application No. 982 of 1997)
Jurisdiction invoked
Original civil jurisdiction of the High Court over the claim (suit initially filed at Milimani Commercial Court Nairobi in 1998 and transferred to Malindi); no specific constitutional provision cited in the judgment

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, "Sea Star Malindi Ltd v Kenya Wildlife Services & another [2018] KEELC 1804 (KLR)", Case Analysis (2018). Malindi HCCC No. 579 of 1998 (Further Re-Amended Plaint). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1804/eng@2018-07-31

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