Naomi Ngare v Municipal Council of Mombasa & another [2019] KEELC 2891 (KLR)
The bottom line
#A Kenyan court awarded a trader Kshs 3 million after county demolitions, but she lost a Kshs 22 million claim by failing to properly plead and prove special damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the demolitions of the plaintiff's structures were proved
The court found the demolitions of the plaintiff's structures proved since the 1st defendant called no evidence to contradict it or to establish illegality or non-ownership
The plaintiff gave unchallenged evidence that her structures were demolished by Council askaris in February 2010. The 1st defendant closed its case without calling any witness and the 2nd defendant tendered nil evidence. No evidence supported the defendant's assertion that the demolished structures were on plot 362 rather than plot 348, or that they were illegal or did not belong to the plaintiff.
Whether special damages of about Kshs22 million were pleaded and proved
Special damages failed because they were not specifically pleaded with particulars and the valuation report and supporting documents did not prove the loss
The amended plaint did not give particulars of special damages and no valuation report was filed at the time of suit. The valuation report produced referred to plot 127/2(61/R) at Kaa Chonjo as a 'house without land', which the plaintiff did not link to her plot 348/IX/MN. No tenancy agreements, rent receipts or evidence of tenant refunds were produced.
Whether general damages were recoverable for demolition and loss of revenue
General damages awarded at Kshs3,000,000/= - Kshs2.5 million for the demolished structures and Kshs500,000 nominal damages for loss of user over two years
Having found the demolitions proved, the court held the plaintiff entitled to compensation, awarding Kshs2.5 million taking into account inflationary rates. For lost revenue, the plaintiff gave no evidence of what prevented her rebuilding and no accounts showing her income, so only a nominal sum for two years' loss of user was awarded.
Legal principles established
#- Special damages must be both specifically pleaded and specifically proved
- A party who alleges illegality of demolished structures or non-ownership must adduce evidence to support that assertion; unchallenged factual evidence stands
Court orders
#- 1.Award of Kshs2,500,000/= as compensation for the demolished structures
- 2.Award of Kshs500,000/= as nominal damages for loss of user for a period of two years
- 3.Total award of Kshs3,000,000/= as general damages payable jointly and severally by the defendants
- 4.Costs of the suit awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property dispute
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Korir & 3 others v County Government of Bomet & 3 others (Environment & Land Petition 1 of 2020) [2023] KEELC 309 (KLR)[2023] KEELC 309 (KLR)26 Jan 2023
Cite this brief
#Cite this brief
Caselaw, "Naomi Ngare v Municipal Council of Mombasa & another [2019] KEELC 2891 (KLR)", Case Analysis (2019). ELC. Case No. 236 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2891/eng@2019-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.