Sea Star Malindi Ltd v Kenya Wildlife Services & another [2018] KEELC 1804 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of the judicial review decision on liability
The unappealed, unreviewed decision of 8th November 2002 quashing the KWS decision settled liability; the court's task was only to assess quantum
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.
Proof of quantum where the defence calls no evidence
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
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.
Personal liability of a public officer (2nd Defendant)
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
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.
Mitigation of loss
The plaintiff should have resumed the project after the 2002 judicial review decision; damages were assessed to 2005 with this in mind
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/=.
Legal principles established
#- 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
#- 1.Kshs 90,000,000/= awarded to the Plaintiff as the cost of reconstruction of the hotel
- 2.Kshs 30,000,000/= awarded as general damages
- 3.Interest on both awards at commercial bank rates until payment in full
- 4.Costs of the suit to the Plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.