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 AllowedEnvironment & Land Case 69 of 2020· [2023] KEELC 17311 (KLR)

Kibuange v County Government of Mombasa

Environment and Land Court
10 May 2023
NMN.A. Matheka
2,292 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Mombasa's county government was ordered to pay Kshs. 3 million for demolishing a trader's building at night without notice or a hearing.

What this practically means

#

Executive summary

#
The plaintiff, allocated space 59 Kongowea Mitumba Market by the defunct Municipal Council of Mombasa in 2006, erected a two-storeyed structure of eight shops and a conference hall and paid monthly ground rent. On June 12, 2020, agents of the County Government of Mombasa partly demolished the premises at night, without written notice, hearing or enforcement notice, in the course of clearing structures along the Makaburini-Kongowea Market exit gate road for an emergency access road. The defendant's witnesses admitted no written notice was issued and described the demolition of the plaintiff's building as a mistake or collateral damage. The court held the demolition unjustified and unlawful, a violation of the plaintiff's property rights under article 40 and of fair administrative action under article 47(1), observing that demolishing structures at night was a draconian and inhuman act. The court found the demolition malicious and held the defendant liable. On remedies, the plaintiff's claim for special damages of Kshs. 30,000,000 failed because a valuation report, like an invoice, is not proof of payment, and loss of rental income was not specifically proved. Exemplary damages were refused, the court not being satisfied the conduct was sufficiently arbitrary or oppressive. The court awarded general damages of Kshs. 3,000,000 for trespass and demolition, guided by the unchallenged quantity surveyor's restoration figure and precedent, plus costs of the suit to the plaintiff.

Key legal issues

#
01

Lawfulness of demolition without notice

Holding

Demolition without notice or enforcement notice was unlawful and unconstitutional

Reasoning

The defendant gave no written notice and no enforcement notice under the Physical Planning Act or the Physical and Land Use Planning Act. Demolishing at night during curfew, described as collateral damage, was draconian and breached articles 40 and 47.

p. 3
02

Fair administrative action

Holding

Failure to afford a hearing violated article 47(1)

Reasoning

Article 47(1) guarantees administrative action that is lawful, reasonable and procedurally fair, with written reasons where rights are adversely affected. No notice, hearing or written reasons preceded the demolition, so the action fell below constitutional standards.

03

Special damages

Holding

Not strictly proved; valuation report insufficient

Reasoning

Though pleaded, the plaintiff relied on a valuation report, which like an invoice is not evidence of payment. Loss of rental income was also not specifically proved, and the ground floor remained occupied.

p. 4
04

Exemplary damages

Holding

Refused

Reasoning

Applying the Rookes v Barnard categories, the court was not satisfied the defendant's conduct was so arbitrary or oppressive as to justify exemplary damages, particularly as the ground floor remained occupied.

05

General damages for trespass

Holding

Kshs. 3,000,000 awarded

Reasoning

Trespass is actionable per se, and the unchallenged quantity surveyor's report valued restoration at Kshs. 6,312,160. Guided by Isaac Gathungu Wanjohi, the court considered Kshs. 3,000,000 adequate compensation.

p. 4

Legal principles established

#
  • Special damages must be specifically pleaded and strictly proved; a valuation report or invoice is not evidence of payment
  • Demolition of premises without notice or enforcement notice breaches articles 40 and 47 of the Constitution

Court orders

#
  1. 1.Declaration that the demolition was unjustified, unlawful and a violation of the plaintiff's constitutional right to fair administrative action
  2. 2.General damages of Kshs. 3,000,000.00 for trespass and demolition
  3. 3.Costs of the suit to the plaintiff

Authorities

#

Legislation

  • Physical Planning Actsection 38(1)
  • Physical and Land Use Planning Act No. 13 of 2019sections 72(1) and (2)
  • Constitution of Kenya, 2010articles 10, 40, 47(1)

Cases cited (8)

  • Dry Associates Ltd vs Capital Markets Authority & another
    Petition No. 328 of 2011

    Article 47 subjects administrative processes to constitutional discipline

  • Paul Audi Ochuodho v Joshua Ombura Orwa
    (2014) eKLR

    Special damages must be specifically pleaded and strictly proved

  • Jamal Mohamed Bandira v Owners of the Motor Vessel "Nasibu"
    (2020) eKLR

    An invoice or proforma invoice is not evidence of payment

  • Total (Kenya) Limited v Janevams Ltd
    [2015] eKLR

    Proforma invoice is a commitment to purchase, not a receipt

  • Great Lakes Transport Co. (U) Ltd v Kenya Revenue Authority
    [2019] eKLR 720

    Distinction between invoice and proforma invoice

  • Godfrey Julius Ndumba Mbogori & another v Nairobi City County
    (2018) eKLR

    Object of exemplary damages is to punish and deter

  • Rookes v Barnard
    [1964] AC 1129

    Categories of cases in which exemplary damages may be awarded

  • Isaac Gathungu Wanjohi v The Attorney General & others
    HCC Petition No. 154 of 2011

    Award of general damages for breach of article 47

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over land and environment)

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.

Cite this brief

#

Cite this brief

Caselaw, "Kibuange v County Government of Mombasa", Case Analysis (2023). Environment & Land Case 69 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17311/eng@2023-05-10

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