Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Civil Suit No. 82 of 2009· [2018] KEELC 4026 (KLR)

Samuel Mwangi Gatoto v Attorney General [2018] KEELC 4026 (KLR)

Environment and Land Court
12 March 2018
AOA. Omollo
3,417 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court-Environment and Land Court held the State liable to compensate a businessman for property destroyed during the 2007-2008 post-election violence, awarding over Kshs 20 million.

What this practically means

#

Executive summary

#
The plaintiff, proprietor of Diani Farmers Day & Night Club and Gombato Guest House in Ukunda, Diani, sued the Attorney General for compensation for property destroyed and businesses lost during the 2007–2008 post-election violence, claiming Kshs 15,718,000 for repairs and Kshs 10,800,000 for loss of business on two properties. The defendant denied liability, pleaded that the police duty to afford security runs to all Kenyans and not to specific individuals, and asserted the suit was time barred. The plaintiff testified with his contractor and auditor; the defendant called the former OCS Diani, who admitted witnessing the burning of makuti structures at the guest house and acknowledged tension between Muslim youths and the Kikuyu community. The court framed two questions: whether the plaintiff suffered loss, and who was liable. It found the loss proved, holding that the burning of the makuti structures was itself damage. On liability, the court distinguished the Charles Murigu decision, holding that the State's awareness of tension placing the plaintiff, a Kikuyu, at risk activated a special duty which the police failed to discharge - a dereliction of duty. The court also relied on the Paul K. Waweru decision and government compensation programmes, holding victims could not be discriminated against. Judgment was entered for Kshs 20,837,310 as special damages, being Kshs 15,718,000 for renovations and Kshs 5,119,310 for looted items. No award was made for loss of business or for burnt orange trees, the latter for want of an agricultural officer's report. No costs order was recorded.

Key legal issues

#
01

Whether the plaintiff suffered loss as a result of the 2007–2008 post-election violence

Holding

Yes - the burning of the makuti structures alone constituted damage, and the plaintiff proved loss of Kshs 20,837,310 in renovations and looted items

Reasoning

It was not in dispute that the plaintiff's businesses were burnt after the disputed 2007 election. The defendant's own report recorded the fire consuming two makuti structures and ensuing tension between Muslim youths and Kikuyus. The defence witness admitted witnessing the fire but could not identify what was salvaged. The court held the burning itself was damage, and found the plaintiff had documented the nature and extent of the loss, with receipts for repairs totalling Kshs 15,718,000 and looted items valued at Kshs 5,119,310.

p. 3
02

Whether the State was liable to compensate the plaintiff

Holding

Yes - the State failed in its duty to protect the plaintiff, who was known to be at risk, and in any event the plaintiff was entitled to compensation like other post-election violence victims

Reasoning

The court distinguished the general police duty from a special duty activated where the State knows specific individuals are at risk. The defence witness admitted tension between Muslim youths and the Kikuyu community, yet no security was beefed up. After the guest house was burnt, a week before the club was attacked, no reinforcement was sought. The police also responded without fire extinguishing equipment. The court further noted government compensation programmes for victims and held the plaintiff could not be discriminated against.

p. 4

Legal principles established

#
  • The State bears responsibility to ensure the rule of law prevails and law and order is maintained at all times, and is liable where it fails to protect persons and property it knows to be at risk
  • Where the police are aware of tension putting specific individuals at risk and fail to beef up security, that is a dereliction of duty attracting State liability
  • Victims of post-election violence are entitled to compensation like other victims under government resettlement/compensation programmes without discrimination

Court orders

#
  1. 1.Judgment entered for the plaintiff against the defendant
  2. 2.Award of Kshs 15,718,000 being costs of renovations proved
  3. 3.Award of Kshs 5,119,310 being value of looted items
  4. 4.Total award of Kshs 20,837,310 as special damages proved

Authorities

#

Legislation

  • Constitution of KenyaArticle 40(1)
  • Constitution of KenyaArticle 1
  • Police Act Cap 84 (repealed)Section 14(1)
  • National Police Service Act No. 11A of 2012Section 24

Cases cited (2)

  • Charles Murigu Murithi & 2 Others vs A. G
    (2015) eKLE
  • Paul K. Waweru & 4 others vs A. G & 2 Others
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for compensation for destruction of land and business premises

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel Mwangi Gatoto v Attorney General [2018] KEELC 4026 (KLR)", Case Analysis (2018). ELC Civil Suit No. 82 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4026/eng@2018-03-12

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