https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4947

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT** **AT MOMBASA** **ELC NO. 29 OF 2016** **BLUE BELLS PROPERTIES LTD….…………………..… PLAINTIFF** **VERSUS** **THE COUNTY GOVERNMENT OF MOMBASA..……DEFENDANT** **JUDGMENT** **Background** 1. By a Plaint dated 16th February 2016 as amended on 22nd March 2022, Blue Bells Properties Limited (hereinafter “the Plaintiff”) prays for judgment against the Defendant for orders as follows: **b) A declaration that the Defendant’s demolition of the Plaintiff’s house Residential Premises on the Plaintiff’s parcel of land situate in District and Municipality of Mombasa containing by measurement nought decimal four one (0.41) of an acre or thereabouts being known as subdivision number 1371 (Original Number 836/6) of Section 1 Mainland North also known as Plot No. 1371/I/MN Nyali Estate, Mkomoni Rd, Mombasa was irregular and unlawful and in contravention of Article 40 of the Constitution;** **c) Kshs. 76,000,000.00 being the current cost for reconstructing the Plaintiff’s demolished house;** **d) Kshs. 22,000,000.00 being the cost of destroyed and vandalized household goods and items in the premises at the time of demolition;** **e) General damages;** **f) Costs of this suit plus interest on (c) and (d) above at Court rates; and** **g) Any other relief the honourable Court may deem fit and expedient to grant.** 1. Those prayers arise from the Plaintiff’s contention that it is the registered proprietor of all that parcel of land known as subdivision Number 1371 (Original Number 836/6) of Section 1 Mainland North and also known as Plot No. 1371/I/MN (the suit property). It is the Plaintiff’s case that sometimes in the year 1980 or thereabouts, it had erected a residential house on the suit property and that it had modified the said house from time to time. 2. The Plaintiff avers that sometimes in September 2015, the Defendant herein issued the Plaintiff with notices under Section 119 of the Public Health Act Cap 242 purporting that the subject residential premises had cracks and requiring the Plaintiff to make good the defects. It is the Plaintiff’s case that whereas the subject premises was a fairly old house with minor cracks, the same was in a habitable condition and the minor cracks did not render the same unfit for occupation and a nuisance. 3. The Plaintiff further avers that while it was making arrangements to repair the said cracks, the Defendant moved into the suit premises on 22nd October 2015 and contrary to the express terms of the notices issued, proceeded to demolish the residential premises erected therein. 4. It is the Plaintiff’s case that at the time of the irregular demolition, items valued at Kshs. 22,000,000.00 were destroyed and vandalized and that the current cost of reconstruction of the residential house is Kshs. 76,000,000.00. 5. But in its Statement of Defence dated 15th June 2017, the County Government of Mombasa (the Defendant”) states that while it was aware that the Plaintiff is the registered proprietor of the suit property and that there was a residential house constructed therein, the Defendant is a stranger to the pleadings that it is the Plaintiff which had constructed the said house. 6. The Defendant admits that it served the Plaintiff with notice and asserts that the defects exhibited in the residential house were serious and required timely intervention. The Defendant avers that the Plaintiff did not repair the defects as required and that it proceeded to demolish the same on 22nd October 2015 after affording the Plaintiff sufficient time to remedy the defects. 7. The Defendant states that the said demolition as carried out was regular and lawfully supervised by the Defendant’s responsible officers to ensure that the same did not cause injury to any individual and/or cause damages to neighbours. The Defendant denies that the Plaintiff incurred any loss and/or damages as a result of the demolition as alleged or at all. 8. At the trial herein, the Plaintiff called two (2) witnesses in support of its case. On the other hand, the Defendant called one (1) witness in support of its case. 9. I have carefully perused and considered the pleadings filed herein, the testimonies of the witnesses as well as the evidence adduced at the trial. I have similarly perused and considered the submissions and authorities placed before the Court by the Learned Counsels representing the two parties. **Analysis and Determination** 1. By their suit as filed herein, the Plaintiff prays for a declaration that the Defendant’s demolition of its residential house situated on the parcel of land known as Subdivision Number 1371 situated in Section 1 Mainland North in Mombasa was irregular, unlawful and in contravention of Article 40 of the Constitution. Accordingly, the Plaintiff urges the Court to direct the Defendant to compensate it in the sum of Kshs. 76,000,000/= said to be the current cost of reconstructing the demolished house and another sum of Kshs. 22,000,000/= being the cost of the destroyed and vandalized items said to have been in the demolished house. In addition, the Plaintiff prays for general damages. 2. The Defendant County Government does not deny demolishing the said house. According to the Defendant, the said house was lawfully demolished after it inspected the same and found that it had serious defects that required urgent intervention. It was the Defendant’s case that despite notice given to the Plaintiff to repair the defects, the Plaintiff had failed to do so thereby necessitating the demolition by the Defendant. 3. In support of its position, the Plaintiff called as its main witness its director Haroon Butt (PW1). PW1 testified that the Plaintiff was the registered proprietor of the suit property wherein sometime in the year 1980, they had erected a residential house which they modified from time to time. 4. PW1 told the Court that sometime in April 2015, the Defendant’s agents and/or employees visited the suit premises to carry out what the Defendant referred to as “routine checks on the sea front structures” within the County. He told the Court that following the visit, the Defendant did on 29th September 2015 serve them with notices under Section 119 of the Public Health Act stating that the subject residential house had cracks and required the Plaintiff to repair the same. 5. According to PW1, while their house was fairly old and had minor cracks, the same was in a habitable condition and the minor cracks did not render the premises unfit for occupation and to be declared as a nuisance. PW1 further told the Court that while they were still making arrangements to carry out the repairs as directed, the Defendant proceeded to the suit premises on 22nd October 2015 and proceeded to demolish the residential house without notice. 6. On its part, the Defendant called its Director Physical Planning one Paul Ogweno Manyala (DW1). According to DW1, the defects exhibited in the said residential house were serious and they required timely intervention which the Plaintiff failed to carry out. DW1 told the Court that they had proceeded to demolish the subject residential house on 22nd October 2015 after affording the Plaintiff sufficient time to remedy the defects specified in their notices. 7. The said notices as exhibited by the Plaintiff were issued by the Defendant under Section 119 of the Public Health Act. The said section provides as follows: **“119. Notice to remove nuisance** **The medical officer of health, if satisfied of the existence of a nuisance, shall serve a notice on the author of the nuisance or, if he cannot be found, on the occupier or owner of the dwelling or premises on which the nuisance arises or continues, requiring him to remove it within the time specified in the notice, and to execute such work and do such things as may be necessary for that purpose, and, if the medical officer of health think it desirable (but not otherwise), specifying any work to be executed to prevent a recurrence of the said nuisance:** **Provided that—** 1. **where the nuisance arises from any want or defect of a structural character, or where the dwelling or premises are unoccupied, the notice shall be served on the owner;** 2. **where the author of the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act or default or sufferance of the occupier or owner of the dwelling or premises, the medical officer of health shall remove the same and may do what is necessary to prevent the recurrence thereof.”** 3. Arising from the foregoing, it was evident that a medical officer of health is indeed empowered in law upon being satisfied of the existence of a nuisance to give the author thereof notice requiring the author to remove the said nuisance. Where the author of the nuisance fails to remove the same, Section 120 of the same Public Health Act provides a procedure on how the contemptuous author of the nuisance should be dealt with. The said section provides as follows: **“120. Procedure if owner fails to comply with notice** 1. **If the person on whom a notice to remove a nuisance has been served as aforesaid fails to comply with any of the requirements thereof within the time specified, the medical officer of health shall cause a complaint relating to such nuisance to be made before a magistrate, and such magistrate shall thereupon issue a summons requiring the person on whom the notice was served to appear before his court.** 2. **If the court is satisfied that the alleged nuisance exists, the court shall make an order on the author thereof, or the occupier or owner of the dwelling or premises, as the case may be, requiring him to comply with all or any of the requirements of the notice or otherwise to remove the nuisance within a time specified in the order and to do any works necessary for that purpose.** **.............** **(8) Before making any order, the court may, if it thinks fit, adjourn the hearing or further hearing of the summons until an inspection, investigation or analysis in respect of the nuisance alleged has been made by some competent person.** **(9) Where the nuisance proved to exist is such as to render a dwelling unfit, in the judgment of the court, for human habitation, the court may issue a closing order prohibiting the use thereof as a dwelling until in its judgment the dwelling is fit for that purpose; and may further order that no rent shall be due or payable by or on behalf of the occupier of that dwelling in respect of the period in which the closing order exists; and on the court being satisfied that it has been rendered fit for use as a dwelling the court may terminate the closing order and by a further order declare the dwelling habitable, and from the date thereof such dwelling may be let or inhabited.** **(10) Notwithstanding a closing order, further proceedings may be taken in accordance with this section in respect of the same dwelling in the event of any nuisance occurring or of the dwelling being again found to be unfit for human habitation.”** 1. Arising from the foregoing provisions, it was evident to me that where an author of a nuisance fails to make good his nuisance upon being served with notice, he is supposed to be summoned before a Magistrate’s Court for appropriate action. Where the Court is persuaded of the existence of the nuisance, an order will be issued compelling the author to remove the nuisance. Failure to comply with the Court orders may result in the author being ordered to pay a fine or his premises being closed. 2. From the material placed before the Court, the Defendant was clearly aware of those provisions. That much can be discerned from the last paragraph of the notices issued where the County Government cautioned the Plaintiff as follows: **“If you make default in complying with the requisition of this Notice or if said nuisance though abated is likely to re-occur, a summon will be issued requiring your attendance to answer a complaint which will be made to the Resident Magistrate, Mombasa, enforcing the abatement of the nuisance, prohibiting a recurrence thereof and for recovering the costs and penalty that may be incurred thereby.”** 1. That being the case, it was unclear to me where the Defendant got the idea that when the Plaintiff failed to comply with its notice, the Defendant had the power to destroy the subject building. It was also telling that while the notices dated 29th September 2015 gave the Plaintiff 30 days within which to comply with the same, the Defendant had moved a week before the expiry of the same to destroy the Plaintiff’s residential house. 2. As was stated by the Court in ***Republic –vs- Fazul Mahamed & 3 Others Ex-Parte Okiya Omtatah Okoiti (2018) eKLR***: **“Fairness - Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.”** 1. In the matter before me, it was clear to me that the Defendant’s action of demolishing the Plaintiff’s house without first summoning the Plaintiff to court were patently un-procedural and unlawful. The notices issued to the Plaintiff had expressly provided what would happen incase of default and the demolition was therefore malicious and done in bad faith. 2. It is trite law that where one suffers damage at the expense of another, the offending party is in law obliged to restore and/or make whole the injured party. As the Court stated in ***Mwandoto –vs- Wamaria (2025) KEHC 14334 (KLR)***: **“The principle of restitutio in integrum requires that an injured party should be restored, as far as money can do, to the position they would have been in had the wrong not occurred.”** 1. In the instant matter, the Plaintiff has produced photos of the residential house prior to its demolition. There was no doubt that the Plaintiff suffered significant damage when the same was unlawfully demolished by the Defendant. In that respect, the Plaintiff has sought the sum of Kshs. 76,000,000/= as the current costs of reconstructing the property as well as payment of the sum of Kshs. 22,000,000/= as the value of the property that was vandalized or destroyed following the demolition. 2. In support of those claims, the Plaintiff produced a Bill of Quantities dated September 2024. The Plaintiff has also produced an undated list of the items alleged to have been stolen or vandalized during the demolition. The Plaintiff has similarly produced a Report and Rent Assessment of the residential premises dated 14th August 2014. That Report prepared by Messrs Fairlane Valuers Ltd assesses the rent at Kshs. 250,000/= per month. 3. As the Supreme Court of Kenya held in ***Attorney General –vs- Zinj Limited (2021) eKLR*** **“The main basis upon which special damages can be granted for the deprivation of property, is the market value of the said property. In case of general damages, a court of law exercises discretion guided by the circumstances of each case. In granting special damages, the trial judge was guided by the Valuation Report tabled by the respondent. In the absence of a contrary report on record, we have no basis upon which to interfere with the award.”** 1. In the matter herein, the Defendant did not produce its own expert report to challenge the bill of quantities produced by the Plaintiff. Where the expert who is properly qualified in his field gives an opinion and gives reasons upon which his opinion is based and there is no other evidence in conflict with such opinion, there can be no basis upon which such opinion could ever be rejected ***(see Pravin Singh Dhalay -vs- Republic (1997) eKLR)***. 2. As to the cost of the household items said to have been destroyed, vandalized or stolen during the demolition, it was my considered view that the same cannot be assessed with certainty or precision. That fact however, does not relieve the wrong doer of the necessity of paying damages as the Defendant did not deny that the house was furnished prior to its demolition. The Plaintiff has as a matter of fact produced photos of items that were in the house. 3. It was also clear to me that by proceeding to the suit property and unlawfully demolishing the Plaintiff’s house, the Defendant was guilty of trespass and the Plaintiff had loss of user of its premises and was therefore entitled to general damages. The Plaintiffs have submitted that they are entitled to exemplary damages. The principles undergirding the exercise of discretion when awarding general damages-particularly for trespass and loss of user – were reiterated by the Court of Appeal in ***Kenya Power & Lighting Company Ltd –vs- Ringera & 2 Others (Civil Appeal E247 & E248 of 2020 (Consolidated) [2022] KECA 104 (KLR)*** thus: **“The principles both parties have relied upon in their invitation for the Court to decide either way are those enunciated by the predecessor of this Court and either crystallized or restated by this Court which we find prudent to distill and replicate as hereunder:** 1. **Harlsburys Laws of England 4th Edition Vol. 45 at para 26 pg 1503, namely, the owner of the land is entitled to nominal damages where there is no actual damage occasioned to the owner by the trespass, such amounts as will compensate the owner for loss of use resulting from the damage caused by the trespass, reasonable damages are payable where the trespasser has made use of the owner’s land, exemplary damages are payable where the trespassers conduct towards the owner is not only oppressive but also cynical and carried out in deliberate disregard of the right of the owner of the land with the object of making a gain by his/her unlawful conduct, general damages may be increased where the trespass is accompanied by aggravating circumstances to the detriment of the owner of the land.”** 2. In the circumstances herein, I was not persuaded that the Plaintiff was entitled to exemplary damages. While the conduct of the Defendant in demolishing the house was certainly actuated in bad faith, there was no evidence placed before the Court that the same was done with the object of making any gain on the part of the Defendant. 3. In the premises, it is my humble view that the Plaintiff is only entitled to general damages for trespass and loss of user. In this regard and taking into account the act complained of, the location of the suit property and the fact that the Plaintiff was deprived of its place of abode for no apparent reason, I come to the conclusion that an award of the sum of Kshs. 5,000,000/= would suffice, as appropriate recompense to and in favour of the Plaintiff. 4. Accordingly, I am persuaded that the Plaintiff has proved its case on balance of probabilities and I hereby enter judgment in favour of the Plaintiff as against the Defendant as follows: 5. **A declaration is hereby made that the Defendant’s demolition of the Plaintiff’s house situated in the Plaintiff’s parcel of land known as Sub-division Number 1371 (Original Number 836/6) of Section 1 Mainland North also known as Plot No. 1371/I/MN, Nyali Estate, Mkomoni Road, Mombasa, was irregular, unlawful and in contravention of Article 40 of the Constitution.** 6. **The Defendant is hereby directed to pay to the Plaintiff the sum of Kshs. 76,000,000/= being the current cost for reconstruction of the Plaintiff’s demolished house.** 7. **The Defendant is hereby directed to pay to the Plaintiff the sum of Kshs. 15,000,000/= being the costs of destroyed and vandalized household goods and items in the premises at the time of demolition.** 8. **The Defendant is hereby directed to pay to the Plaintiff the sum of Kshs. 5,000,000/= as general damages for trespass and loss of user.** 9. **The Defendant shall pay interest on items (b), (c) and (d) at Court rates until paid in full.** 10. **The Plaintiff shall have the costs of this suit.** **Judgment dated, signed and delivered in open court and virtually at Mombasa this 30th day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mr. Kimathi holding brief for Agwarra Advocate for the Plaintiff c) Ms. Kinuva Advocate for the Defendant