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ELCDismissedMalindi ELC Case (formerly Nairobi HCCC No. 595 of 2005)· [2019] KEELC 3247 (KLR)

Sea Star Malindi Limited v County Government of Kilifi [2019] KEELC 3247 (KLR)

Environment and Land Court
29 May 2019
JOJ. O. Olola
2,340 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A hotel developer's Kshs 658 million demolition claim against Kilifi County failed because the same losses were already compensated in a separate case.

What this practically means

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Executive summary

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The Plaintiff, Sea Star Malindi Ltd, claimed special damages of Kshs 658,371,697.00 from the County Government of Kilifi (successor to the defunct Municipal Council of Malindi) following the demolition in January 2005 of a hotel it was constructing on Plot No. 3170 Malindi. The Plaintiff contended that the Council approved its building plans in August 1996, reassured it after an objection by the Kenya Wildlife Service, and then turned around and demolished the structures when the project was about 90% complete. The Defendant denied the Plaintiff's ownership and the validity of the approvals, and pleaded that any award would be contrary to public policy as the cause arose ex turpi causa. At trial, the Plaintiff called three witnesses, including a quantity surveyor who estimated reconstruction costs at over Kshs 167 million, while the Defence called no oral evidence despite adjournments. The court held that if the Defendant demolished the structures the Plaintiff would be entitled to compensation, but took judicial notice of its own earlier judgment of 31st July 2018 in Malindi ELC No. 56 of 2016, arising from the same circumstances, in which it had awarded the Plaintiff Kshs 90 million reconstruction costs and Kshs 30 million general damages against the Kenya Wildlife Service. The court found the present claims intertwined and related to those claims and should have been pursued as one claim, and found no evidence of the directors' alleged travel expenses. The suit was dismissed, but the Defendant was ordered to pay the costs of the suit given its role in the matter.

Key legal issues

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01

Liability of the Defendant for the demolition of the Plaintiff's hotel

Holding

If the Defendant demolished the structures, the Plaintiff would be entitled to compensation, but no separate award was made given prior judgment in the related suit

Reasoning

The court noted the Defence did not call any oral evidence despite adjournments and did not controvert the Plaintiff's claim. It took judicial notice that the Plaintiff had already obtained a judgment against the Kenya Wildlife Service in Malindi ELC No. 56 of 2016 for reconstruction costs and damages arising from the same hotel construction, and held the present claims were intertwined with those claims and should have been pursued as one claim.

p. 3
02

Entitlement to special damages as pleaded

Holding

The Plaintiff was not entitled to a separate award of the sums claimed against the Defendant

Reasoning

The court was not satisfied that the Plaintiff had put up another hotel in 2005 which the Municipal Council demolished, or that the structures demolished were of the value claimed. The claims overlapped with those already litigated and awarded in the suit against KWS. No evidence was adduced of the directors' travel expenses.

p. 4

Legal principles established

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  • A party entitled to compensation for demolition of its structures cannot pursue claims arising from intertwined and related circumstances as separate suits against different defendants.

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Defendant is condemned to pay the costs of this suit
Jurisdiction invoked
Original civil jurisdiction of the High Court (HCCC No. 595 of 2005) transferred to the Environment and Land Court at Malindi; land-based claim

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 Limited v County Government of Kilifi [2019] KEELC 3247 (KLR)", Case Analysis (2019). Malindi ELC Case (formerly Nairobi HCCC No. 595 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3247/eng@2019-05-29

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