https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4552

Energy and Petroleum Regulatory Authority & another v Thirunga (Environment and Land Appeal E026 of 2026) [2026] KEELC 4552 (KLR) (13 July 2026) (Judgment) Neutral citation: [2026] KEELC 4552 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E026 of 2026 JO Mboya, J July 13, 2026 Between Energy and Petroleum Regulatory Authority 1st Appellant The Attorney General 2nd Appellant and Bernard Kirimi Thirunga Respondent (Being and appeal from the judgment delivered by Hon. E M Ayuka, P M on the 12th February, 2026 in Tigania ELC No. E111of 2023) Judgment 1.On or about the 24.06.2019, the officers from the 1st appellant herein, in the company of police officers attached thereto, proceeded to LR. No. Tigania /West/Uringu II/1816 [hereinafter referred to as the suit property] and while thereon demolished the building standing thereon, which comprised of a petrol station belonging to and operated by the respondent herein. 2.It was contended that the petrol station, which was standing and being operated on the suit property, was operating without various approvals, inter alia; approval to construct a petrol station; and license to operate the petrol station. Furthermore, it was posited that the 1st appellant had previously issued to and served the respondent with a notice to stop operating the petrol station. 3.Arising from the offensive actions, by and on behalf of the 1st appellant, and more particularly, the demolition of the petrol station, the respondent filed civil proceedings vide Tigania/CMELC No. E111 of 2023 and wherein the respondent sought various reliefs. The reliefs sought vide the Plaint dated the 06.10.2023 are:a.An order for permanent injunction restraining the Defendants whether by themselves, their servants and/or agents and/or assigns or otherwise restraining them from entering, using, occupying, developing or otherwise dealing with Land Register No. Tigani West/Uriungu II/1816.b.Loss of assets of Kshs. 4,575,000/=.c.Loss of income of Kshs. 5,773,710/=.d.General damages for both trespass and malicious prosecution.e.Costs of the suit and interest at court rates on [b], [c] and [d] above.f.Any other or better relief that his Honourable Court deems fit to grant. 4.The respondent contended that same bought the suit property together with the petrol station from the previous registered owner thereof and thereafter, took possession; and commenced to operate the petrol station. The respondent posited that it is not him who constructed the petrol station, to warrant procuring a construction permit. Nevertheless, the respondent maintained that the construction of the petrol station was duly approved and same had the requisite approvals, licenses, and permits. 5.The respondent further maintained that on the 20.06.2019, officers from the 1st appellant, accompanied by police officers, went to the petrol station and seized assorted documents and books. Moreover, it was contended that by the time the 1st appellant returned to demolish the petrol station, that is, four [4] days thereafter, the 1st appellant was still in possession of the various documents. 6.It was contended that owing to the offensive actions by and on behalf of the 1st appellant, the respondent suffered damage and incurred several losses. The losses were particularized at foot of paragraphs 9 and 10 of the Plaint. 7.The appellants’, who were the Defendants, duly entered appearance and thereafter filed their respective statements of defence. The 1st appellant filed a statement of defence dated the 22.01.2024, while the 2nd defendant filed a statement of defence dated the 17.11.2023. The appellants denied the claim by /on behalf of the respondent. In particular, it was contended that the respondent was operating the petrol station without construction approval and various operational licenses/permits. 8.Additionally, the 1st appellant posited that its officers had visited the petrol station on the 20.06.2019 and discovered various anomalies. In particular, it was posited that the respondent did not have the construction approval and operational licenses. Moreover, the 1st appellant averred that same proceeded to and served the respondent with a closure notice dated the 19.06.2019. 9.Furthermore, the 1st appellant contended that despite having been served with the closure notice, the respondent continued to operate the petrol station and thus the 1st appellant was obligated to decommission the petrol station. Further, and in any event, it was averred that the decommissioning of the petrol station was undertaken in accordance with the provisions of Section 91 of the Petroleum Act, Chapter 308 Laws of Kenya. 10.In addition, the 1st appellant also posited that the demolition of the petrol station in question was authorized, nay, sanctioned vide a court order stated to have been issued vide Mavoko SPM Misc. Criminal Application No. 108 of 2019. To this end, the 1st appellant maintained that its actions were lawful and thus the claims by the respondent, are untenable. 11.The suit in the lower court was heard and disposed of vide Judgment delivered on the 12.02.2026, whereupon the Learned Trial Magistrate [Hon. E. M Ayuka – Principal Magistrate] found and held that the actions by and on behalf of the appellants, were unlawful, illegal and violated the respondent’s right to property. The Learned Trial Magistrate thereafter proceeded to and entered Judgment in favour of the respondent. 12.Dissatisfied with the Judgment and the consequential decree arising therefrom, the appellant’s filed the subject appeal vide Memorandum of appeal dated the 04.03.2026. The Memorandum of appeal was thereafter amended resting with the amended memorandum of appeal dated the 10.03.2026. 13.The amended Memorandum of appeal has raised various and numerous grounds, some of which are prolix in nature. Be that as it may, it is apposite to reproduce the grounds verbatim. 14.The grounds are:i.That the Learned Trial Magistrate erred in law and in finding that the 1st respondent had on a balance of probability established his claim against the appellant.ii.That the Learned Trial Magistrate erred in law and in fact by disregarding and ignoring the appellant’s statements of defence, witness statements, lists of documents, submissions and the oral evidence during the hearing and instead relied on its own misdirection to reach the Judgment/verdict.iii.That the Learned Trial Magistrate erred in law by disregarding the legal effect and binding nature of court orders issued in Mavoko Miscellaneous Criminal application No. 108 of 2019 authorizing dismantling of illegal petroleum sites across the county.iv.That the Learned Trial Magistrate erred in law and in fact by holding that the appellants acted unprocedurally and unlawfully contrary to Section 91 of the Petroleum Act, Cap, 308, despite uncontroverted evidence that a statutory twenty-one [21] day notice had been issued to the respondent.v.That the Learned Trial Magistrate misinterpreted and misapplied section 91[2] of the Petroleum Act, Cap 308 by failing to appreciate that the Appellant’s enforcement action was lawfully undertaken pursuant to statutory mandate and in furtherance of public safety obligations.vi.That the Learned Trial Magistrate erred in law and fact in holding that no determination had been reached that the petrol station was illegal, despite clear evidence that:a.The respondent had no construction permit issued by the Energy and Petroleum Regulatory Authority as required under Section 86 of the Petroleum Act, Cap 308;b.The respondent had no petroleum retail operating license as required under section 74 of the Petroleum Act, Cap 308;c.The respondent was operating in contravention of mandatory statutory provisions.vii.That the Learned Trial Magistrate erred in law in holding and finding that the ownership of L. R. No. Tigania West/uringu -II/1816 was immaterial, thereby failing to consider that:a.The Respondent’s title was under active criminal investigation for forgery at Tigania Law Court vide Tigania Criminal Case Number E9456 of 2045 – Republic versus Bernard Kirimib.There existed a pending civil dispute over ownership of the land in Tigania Law Courts vide Tigania Criminal Case No. E096 of 2024 – Mukubio Migweta versus Bernard Kirimi Thirunga on the ownership of L R. No. Tigania West/Uringu -II/1816.c.The respondent had not established proprietary rights on a balance of probabilities.viii.That the Learned Trial Magistrate erred in law by awarding damages arising from an enterprise that was being operated illegally and in contravention of the statutory licensing requirements.ix.That the Learned Trial Magistrate erred in law and in fact in finding that the respondent had proved special damages of Kshs. 4,575,000/= for loss of assets without strict proof as required under Sections 107 -109 of the Evidence, Act Cap 80.x.That the Learned Trial Magistrate erred in awarding Kshs. 5,773,710/= for alleged loss of income in the absence of evidence of cogent documentary proof.xi.That the Learned Trial Magistrate erred in treating internally generated annual reports and financial statements as “expect evidence” withouta.Proof of authorshipb.Qualifications of the makerc.Compliance with section 65 of the evidence act, cap 80 on production of documents.xii.That the Learned Trial Magistrate erred in law by awarding special damages that were neither strictly proved nor supported by primary documentary evidence such as receipts, valuation reports and motor vehicle log book.xiii.That the Learned Trial Magistrate erred in law and fact by failing to consider that the provisions of the Petroleum Act, Cap 308 as captured in the appellant’s pleadings and submissions are intended to ensure public safety and environmental protection.xiv.That the Learned Trial Magistrate erred in law and in fact by grating a permanent injunction against the 1st appellants despite the Energy Act, Cap 314 clearly granting the 1st appellants rights to entry and inspection of any energy or petroleum operations or sites across the country.xv.That the Learned Trial Magistrate erred in law and in fact by failing to analyze contradictions in the respondent’s testimony regardinga.Ownership of the suit propertyb.Valid licensing of the retail stationc.Alleged seizure of the respondent’s documents among others.xvi.That the Learned Trial Magistrate shifted the burden of proof from the respondent o the appellant contrary to sections 107- 109 of the Evidence Act, Cap 80.xvii.That the Learned Trial Magistrate erred in law and in fact by failing to appreciate the honorable court lacked jurisdiction to hear and determine the case against the appellants.xviii.That the Learned Trial Magistrate erred in law and fact in entering judgment against the appellants jointly and severally. 15.The subject appeal came up for directions on the 18.06.2026, whereupon learned counsel for the appellants’ intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. Thereafter, counsel sought direction[s] as pertains to the disposal of the appeal. Moreover, counsel proposed to canvass the appeal by way of written submissions. 16.With the concurrence of the learned counsel for the respondent, the court proceeded to and issued directions. The directions were: The appeal shall be heard before one Judge, siting at Meru; the appeal shall be canvassed by way of written submissions; the appellants shall file and serve written submissions within 14 days from the date of directions; the respondent shall file written submissions within 14 days from the date of service; and the appellants shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 17.The appellants filed written submissions dated the 02.06.2026 and wherein the appellants have raised and canvassed four [4] key issues. The issues are: Whether the trial court was seized of jurisdiction to handle a malicious claim against the 2nd appellant; whether the respondent proved his claim for malicious prosecution against the 2nd appellant; whether the respondent had valid documentation to operate the petrol station; and whether the 1st appellant illegally trespassed onto the respondent’s property and illegally demolished the petrol station thereon. 18.Regarding the issue of jurisdiction, learned counsel for the appellants has submitted that the suit in the lower court was filed as an Environment and Land matter. In addition, it has been submitted that the Learned Trial Magistrate was a gazetted Magistrate, with jurisdiction to handle Environment and Land matters. Nevertheless, it was submitted that the Learned Trial Magistrate could not exercise jurisdiction and adjudicate upon a claim for malicious prosecution, while exercising the delegated Jurisdiction under the provisions of Section 26 of the Environment and Land Court Act, 2011. To this end, it was submitted that the Learned Trial Magistrate was therefore divested of the requisite jurisdiction to entertain and adjudicate upon the limb of the dispute touching on and concerning malicious prosecution. 19.Moreover, it was submitted that Jurisdiction is everything and where a court is divested of jurisdiction, the court cannot entertain proceedings and render a determination in such a matter. In addition, it was contended that where a court acts without jurisdiction, the proceedings and the consequential order [if any] are nullities. 20.To buttress the foregoing submissions, learned counsel for the appellants has cited and referenced various decisions. The decisions are: Owners of Motor Vessel Lilian S versus Caltex Oil [Kenya] Limited [1989] KECA 48; Phoenix of East Africa Company Limited versus S M Thiga T/a Newspaper services [2019] KECA; and Macharia and another versus Kenya Commercial Bank Limited [2012] eKLR, respectively. 21.The second issue that has been canvassed by learned counsel for the appellants relates to whether the plea/claim of malicious prosecution, was proved /established against the 2nd appellant. It was submitted that though the respondent had pleaded malicious prosecution, no evidence was tendered to demonstrate that the prosecution complained of, was malicious. In particular, learned counsel has submitted that the mere fact that the respondent was arrested and prosecuted and thereafter acquitted, does not by and of itself, amounts to malicious prosecution. 22.Additionally, it has been submitted that the respondent was obligated to tender credible evidence to demonstrate, inter alia; that the prosecution was inspired by malice; there was no lawful cause and that the prosecution acted without due regard to the law and the totality of the evidence. 23.To bolster the submissions that the respondent did not prove malicious prosecution, learned counsel for the appellant has cited a plethora of decisions. The decisions are: Stephen Gachau Githaiga and another versus Attorney General [2025] eKLR; John Kyalo versus Kenya Tea Development Authority and another [2005] eKLR and Jediel Nyaga versus Silas Mucheke [1987] eKLR, respectively. 24.The next issue that has been submitted upon by learned counsel, touches on whether the respondent had valid documentations to operate the petrol station. It has been submitted that anyone desirous to operate a petrol station, the respondent not excepted, was obligated to procure and obtain the requisite licenses and approvals. However, it was submitted that respondent herein did not have the requisite approvals and licenses. Moreover, it was submitted that when the officers of the 1st appellant visited the petrol station, it was discovered/established that the respondent did not have the statutory approvals. 25.Learned counsel for the appellants has submitted that the respondent was operating the petrol station in contravention of Section 86 of the Petroleum Act, Chapter 308 Laws of Kenya. In this regard, it has been contended that the 1st appellant was therefore within its statutory mandate to take the impugned actions, including, decommissioning the Petrol Station. 26.Moreover, it has been submitted that the 1st appellant issued and served the respondent with a stop notice, which directed the respondent to stop operating the petrol station and to demolish the same. The counsel added that the notice to stop operating was issued pursuant to Section 91 of the Petroleum Act. 27.Regarding the last issue, learned counsel for the appellants has submitted that the 1st appellant, is bestowed with statutory mandate to undertake inspection of various petrol stations and to discern whether the operators are compliant. In addition, it was submitted that the 1st appellant is also authorized to issue statutory notices and where appropriate, to decommission petrol stations that are being operated without regard to the provisions of the Petroleum Act. 28.Arising from the foregoing, it has been submitted that the actions of the 1st appellant were undertaken in accordance with the law. To this end, learned counsel has posited that the actions of the 1st appellant, cannot be termed to constitute trespass. 29.Furthermore, learned counsel for the appellants, has submitted that the demolition of the petrol station was sanctioned by a court order. In this regard, learned counsel has referenced the order arising from Mavoko SPM Misc. Criminal Application No. 108 of 2019. 30.Flowing from the foregoing, learned counsel for the appellants has submitted that the appeal is meritorious. The court has been invited to allow the appeal; set aside the impugned Judgment; and substitute therefore, an order dismissing the respondent’s suit in the lower court. 31.The respondent filed written submissions dated the 26.06.2026, and wherein the respondent has highlighted five [5] key issues. The issues are: Whether the trial court was seized of the requisite jurisdiction to determine the question of malicious prosecution; whether the trial court disregarded the court order issued vide Mavoko SPM Misc. Criminal Application 108 of 2019; whether the 1st appellant procedurally applied the provisions of Section 91 of the Petroleum Act, Chapter 308 Laws of Kenya; whether the respondent established proprietary rights in respect of the suit property; and whether the respondent proved the damages or otherwise. 32.Regarding the question whether the Learned Trial Magistrate disregarded the orders issued vide Mavoko SPM Misc. Criminal Application Number 108 of 2019, learned counsel for the respondent submitted that the said order, which has been relied upon by the appellants, did not grant any orders for purposes of demolition of the respondent’s petrol station. Moreover, it has been submitted that the respondent was not even a party to the said proceedings or at all. 33.Additionally, it has been submitted that because the respondent was not a party to said proceedings, the proceedings under reference and the consequential orders, if any, cannot affect the rights of the respondent. Learned counsel has thereafter highlighted the import and tenor of the right to fair hearing and fair trial, in terms of Articles 25 [c] and 50 of the Constitution, 2010. 34.To buttress the submissions that the proceedings and the orders, if any, emanating from Mavoko SPM Misc. Criminal Application Number 108 of 2019, cannot affect the respondent, counsel has cited various decisions. The decisions are: Pashito Holdings and another versus Ndungu [1997] 1 KLR; Housing Finance Company of Kenya Limited and 2 others versus Samuel Kiti Lewa [2019] KECA and Kimani alias Kimani Samuel Maina Gichuhi and 2 Others versus Gichuhi and 2 others [2025] KECA, respectively. 35.Secondly, learned counsel for the respondent has submitted that the 1st appellant did not adhere to or comply with the provisions of Section 91 of the Petroleum Act, Chapter 308, Laws of Kenya, or at all. In particular, learned counsel for the respondent has submitted that no notice was ever served upon the respondent. Moreover, it has been submitted that it was not possible or feasible for the 1st appellant to visit the petrol station on the 20.06.2019 and purport to have issued the closure notice on 19.06.2019. To this end, counsel submitted that the 1st appellant proceeded to and demolished the petrol station without lawful cause. 36.The third issue that has been canvassed by learned counsel for the respondent relates to whether the respondent established and proved title to or rights over the suit property. Counsel has submitted that the respondent tendered and produced before the court a certificate of title; and certificate of official search, in respect of the suit property. Furthermore, it has been submitted that the named documents duly confirmed that the respondent was the lawful owner of the suit property. 37.It has been submitted further that the certificate of title by / on behalf of the respondent has never been cancelled or revoked. In any event, counsel has posited that a certificate of title is prima facie evidence of ownership, unless the contrary is established. 38.Lastly, learned counsel for the respondent has submitted that the respondent duly proved the claim that had been pleaded before the court. To this end, learned counsel referenced the statements of accounts, which were tendered and produced before the court. In any event, it has been submitted that the statement of accounts, were expert documents and that the contents thereof, were never impugned/impeached. 39.In addition, it has been submitted that the Appellants’ herein were at liberty to call their own expert. However, counsel has submitted that the appellants did not call any expert to controvert the expert evidence produced by the respondent. In the absence of any contrary expert report, learned counsel has submitted that the statement of accounts, were properly relied upon by the trial court. 40.To buttress the submissions that an expert report can only be controverted by another expert report, learned counsel has cited and referenced various decisions. The decisions are: Kenya Bus Service Limited and another versus Fredrick Mayende and another [1991] 2 KAR; and Rose Kaiza versus Anjelo Mpanju Kaiza [2009] KECA; respectively. 41.Owing to the foregoing, learned counsel for the respondent has invited the court to find and hold that the subject appeal is bereft of merits. The court has been implored to dismiss the appeal; and to affirm the judgment of the lower court. Besides, the court has been invited to award costs to the respondent. 42.Having reviewed the record of appeal; the grounds of appeal; the evidence tendered [both oral and documentary]; the impugned Judgment; and upon consideration of the written submissions filed by/ on behalf of the respective parties, three [3] key issues emerge for determination. The issues are: whether the Honourable court was seized of jurisdiction to entertain and adjudicate upon the limb of the claim relating to malicious prosecution or otherwise; whether the respondent duly proved and established his claim; and whether the Learned Trial Magistrate erred in entering Judgment in favour of the respondent. 43.Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the legal principles. 44.The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding[s] and conclusion[s] of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 45.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. The jurisdiction cannot be exercised for the mere asking. It is not available at will. 46.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus“ 46.We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.” 47.Recently, the Court of Appeal re-visited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR). The Court highlighted the principle[s] in the following manner:“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeals are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) and County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) – [paragraphs 56 and 57 thereof]” 48.Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the first issue, namely; Whether the Honourable court was seized of jurisdiction to entertain and adjudicate upon the limb of the claim relating to malicious prosecution or otherwise. 49.The learned counsel for the appellant has submitted that the suit that was filed before the lower court was filed as an Environment and Land court matter. Furthermore, it has been submitted that the Learned Trial Magistrate entertained and adjudicated upon the matter, in his capacity as a gazzeted Environment and Land court Magistrate. It was submitted that while exercising his mandate pursuant to the gazettement, the Learned Trial Magistrate could not entertain matters / claims outside the scope of his jurisdiction. 50.It has been submitted that the learned trail magistrate did not have jurisdiction to entertain and adjudicate upon the limb of the matter, touching on and concerning malicious prosecution. 51.I do agree with the submissions by learned counsel. It is imperative to highlight that where the magistrate is exercising the delegated jurisdiction pursuant to Section 26 of the Environment and Land Court, same can only entertain and adjudicate upon claims that fall within the said scope. For good measure, a claim touching on malicious prosecution cannot be joined along side an Environment and Land matter. Moreover, where such a claim is joined alongside an Environment and Land matter, then it behooves the trial court to strike out the limb and to engage with the remainder. 52.It is also common ground that a court of law can not entertain proceedings or a segment of the proceedings, without the requisite jurisdiction. Suffice it to state that where a court entertains proceedings without jurisdiction and makes an order, such an order would be a nullity. 53.In the case of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR), the Court of Appeal highlighted the obtaining legal principle. The court stated thus:“In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae. It is for this reason that this Court has to deal with this appeal first as the result directly impacts Civil Appeal No.6 of 2018 which is related to this one. We shall advert to this issue later. In the meantime, it is important to put this appeal in context.” 54.Be that as it may, what learned counsel for the appellants is not stating is that the Learned Trial Magistrate, did not make any ultimate findings on the question of malicious prosecution. Furthermore, there is no gainsaying that no award was made on account of malicious prosecution. To this end, it can safely be stated that the claim as pertains to malicious prosecution, was declined. In any event, it is a principle of the law that where a relief is not expressly granted, same is deemed as declined. 55.I do not understand the basis or foundation of the appellants’ arguments before this court as pertains to the aspect of malicious prosecution. The decree of the court is clear and apt. The court only made awards on account loss of assets and loss of income. These limbs of the Claim fell within the Jurisdiction of the Learned Trial Magistrate. 56.Bearing the foregoing in mind, it is my finding and holding that the ground of appeal touching on and concerning [sic] lack of jurisdiction, is moot. The issue is spent, insofar as no award was made on account of malicious prosecution. 57.I now wish to turn to the second issue. The second issue touches on and concerns whether the respondent duly proved/established his claim as against the appellants or otherwise. To begin with, I wish to highlight that the only limb of the claim that was dealt with and disposed of by the Learned Trial Magistrate concerned the offensive actions of the 1st appellant. 58.The respondent had contended that the officers of the 1st appellant visited the petrol station on the 20.06.2019 and confiscated various documents therefrom. In addition, the respondent posited that the 1st appellant returned to the suit property [petrol station] on the 24.06.2019 and thereafter proceeded to and demolished the petrol station. The Respondent also averred that the demolition complained of was undertaken without regard to the due process of the law. 59.On their part, the 1st appellant contended that the respondent was operating the petrol station without statutory approvals; permits; and licenses. In addition, the 1st appellant posited that they visited the petrol station on the 20.06.2019 and established various anomalies. Furthermore, the 1st appellant averred that thereafter, the respondent was issued with a closure notice, which directed the respondent to stop operating and to demolish the petrol station. 60.The 1st appellant also posited that the respondent failed to abide by or comply with the closure notice and therefore, the 1st appellant was within its statutory mandate to decommission [demolish] the petrol station. To this end, the 1st appellant referenced the provisions of Section 91 of the Petroleum Act, Chapter 308, Laws of Kenya. 61.Additionally, the 1st appellant also averred that the demolition of the Petrol station was informed by the orders issued vide Mavoko SPM Misc. Criminal Application No. 108 of 2019. According to the 1st appellant, the orders issued therein allowed same or its officers to demolish all illegal petrol sites across the country. 62.I have reviewed /appraised the totality of the evidence on record. It is important to underscore that even though the 1st appellant is chargeable with the statutory duty of undertaking inspection of inter alia; petrol stations and ensuring safety, the 1st appellant is obliged to act and carry its mandate in accordance with the law. The First Appellant cannot act outside the purview of the Law. The First Appellant is a State Instrumentality. It is bound by the Constitution, 2010. 63.As pertains to the manner in which the 1st appellant is to operate, it is imperative to reference the provisions of Section 91 of the Petroleum Act, Chapter 308, Laws of Kenya. The section stipulates thus:“ 91.Destruction of illegal construction(1)Where a person has constructed a pipeline, refinery, bulk storage facility, retail dispensing site or a centralized gas reticulation system without a permit, the licensing authority may—(a)give that person a notice of twenty-one days to obtain the permit;(b)direct that person to stop the construction; or(c)direct that person to decommission the pipeline, refinery, bulk storage facility, retail dispensing site or a centralized gas reticulation system.(2)If the owner or occupier of the facility in sub section (1) fails to remove the works, the licensing authority shall decommission the works at the cost of that person.(3)Notwithstanding subsection (1), any person who constructs a pipeline, refinery, bulk storage facility, retail dispensing site or a centralized gas reticulation system without a permit is liable on conviction to a fine of not less than one million shillings. 64.Did the 1st appellant comply with the provision of section 91 of the Act [supra]? Where it was/is found and established that the petroleum operator /dealer, was operating without the approval, like it was averred herein, Section 91 [1] of the Petroleum Act commanded the 1st appellant to issue and serve a 21-day notice. The import of the notice, is to call upon the named operator to obtain [sic] the permit in question. 65.In respect of the subject matter, it was contended that the respondent did not have the construction approval, to operate the petrol station. The respondent however, posited that he bought the petrol station long after it had been constructed and same was operational. To this end, the respondent tendered a copy of the sale agreement to that effect. 66.Notwithstanding the foregoing, the question that does arise is whether the respondent was issued with the notice envisaged vide section 91 of the petroleum Act [supra]. Suffice it to state that no such notice was issued. Instructively, the 21-day notice, relates to the operator being called upon to procure [sic] the permit or license, which is contended to be missing. 67.Other than the foregoing, it is not lost on me that the 1st appellant pretended to have issued a notice dated the 19.06.2019 and wherein, it is posited that the respondent was given 21 days to close. The question that does arise, is how possible or feasible could a notice have been issued on the 19.06.2019 yet the visitation /inspection, is said to have been carried out on the 20.06.2019. Quite clearly, something is amiss. 68.Furthermore, and even assuming that the impugned notice was issued, which is not the case, the notice which was alluded to did not comply with Section 91 of the Petroleum Act. In particular, the 21day notice is not for purposes of closure, but is a window given to the operator to [sic] remedy the anomaly or obtain the permit/license. 69.I also wish to state that even though the 1st appellant had alluded to a notice, which was indicated to have been served, the appellants’ own witness conceded that the notice had not been tendered or produced before the court. This is what DW1 stated while under cross examination by learned counsel for the respondent:“The notice is not before the court. We have not produced it. The law requires that we serve the plaintiff with the requisite notice”. 70.From the testimony of the 1st appellant’s own witness, it is crystal clear that the respondent was not issued with a notice. For good measure, if any such notice was ever issued, then it behooved the 1st appellant to produce same. The failure to produce the impugned notice [if any was available] provides a basis for making an adverse inference as against the 1st appellant. 71.Additionally, the 1st appellant is a state agency/instrumentality. To this end, the 1st appellant is enjoined to comply with the provisions of Article 47 of the Constitution, 2010 and to ensure that any administrative action, whichever the case, meets the constitutional threshold. 72.At this juncture, it suffices to reproduce the provisions of article 47 of the constitution, 2010. The provisions stipulate as hereunder:Fair administrative action. 47.(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is 31 Constitution of Kenya, 2010 likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration 73.Moving on, the 1st appellant also posited that the offensive demolition was undertaken on the basis of an order that was said to have been issue vide Mavoko SPM Misc. Criminal Application Number 108 of 2019. The copy of the order alluded to was tendered and produced as exhibits D4. However, it is important to highlight that the said order did not relate to and or concern the respondent. 74.It is also clear that the impugned proceedings did not include the respondent. Simply put, the respondent was not a party to impugned proceedings and therefore the orders, if any, arising therefrom, could not be deployed to demolish the respondent’s property. Surely, the provisions of Article 25 [c], 40 and 50 of the Constitution, 2010, must count for something. 75.I do not wish to belabor the point. However, it is imperative to underscore that no arbitrary action could be taken against the respondent, without him being afforded the right to due process. The respondent was entitled to due notice and opportunity to be heard. 76.In the case of Shollei v Judicial Service Commission & another [2022] KESC 5 (KLR), the Supreme Court of Kenya, stated as hereunder:The right to a fair hearing is provided for in the Constitution as follows: “Article 50(1) of the Constitution provides that: Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” Article 25 of the Constitution stipulates that:“Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited –(a)freedom from torture and cruel, inhuman, or degrading treatment or punishment.(b)freedom from slavery or servitude.(c)the right to a fair trial;(d)the right to an order of habeas corpus.” [emphasis added].In Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others, SC Petition No 18 of 2014 as consolidated with Petition No 20 of 2014; [2014] eKLR (Njoki Ndungu, SCJ, Concurring), this court made the following finding concerning the right to a fair trial under article 50(1) and 50(2):“[255] Article 50(1) refers to the right to a fair hearing for all persons, while article 50(2) accords all accused persons the right to a fair trial. Article 25(c) lists the right to a fair trial as a non-derogable fundamental right and freedom that may not be limited. Often the terms ‘fair hearing’ and ‘fair trial’ are used interchangeably, sometimes to define the same concept, and other times to connote a minor difference. Although the right to a fair trial is encompassed in the right to a fair hearing in our Constitution, a literal construction of these two provisions may be misconstrued in some quarters to mean that article 50(1) deals with the right to fair hearing in any disputes including those of a civil, criminal or quasi criminal nature whereas article 50(2) is limited to accused persons thereby arguing that the protection of such right only relates to criminal matters. This is not an acceptable interpretation or construction within the parameters of articles 19 and 20 of the Bill of Rights, which calls for an expansive and inclusive construction to give a right its full effect…(257)Fair hearing, in principle incorporates the rules of natural justice, which includes the concept of audi alteram partem(hear the other side or no one is to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Peter Kaluma, Judicial Review: Law, Procedure and Practice 2nd Edition (Nairobi: 2009) at page 195, notes that the rules of natural justice generally refer to procedural fairness in decision making. Further he analyses the two mentioned concepts of the rules of natural justice and states [at pages 176 and 177] that it is the duty of the courts, when dealing with individual cases, to determine whether indeed the rules of natural justice have been violated and noting that “although the necessity of hearing is well established, its scope and contents remain unsettled.…(261)It is important to restate that a literal reading of the provisions of the Constitution show that the right to a fair hearing is broad and includes the concept of the right to a fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. Comparative experience shows that the European Court has elaborated on the question regarding the scope of the right to fair trial applying the right in both civil and in criminal matters. The European Court of Human Rights (European Court) has severally explained that: “it is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court.” (See Steel and Morris v. United Kingdom, [2005] ECHR 103, paragraph 59). 77.To my mind, there is no way the 1st appellant herein could contended that same deployed and relied upon the proceedings and the order that was issued vide Mavoko Misc. Criminal Application 108 of 2019, to undertake the offensive demolition. 78.Suffice it to underscore, that the manner in which the demolition was undertaken, did not accord with the provisions of Section 91 of the Petroleum Act and in this regard, I find and hold that the impugned demolition was not only unlawful, but also constituted a gross violation of the provisions of Article 40 [2] of the constitution, 2010.78.Article 40 [3] of the Constitution stipulates thus:40. (1)Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property — (a) of any description; and (b) in any part of Kenya.(2)Parliament shall not enact a law that permits the State or any person—(a)to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or(b)to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27. 79.Next is the issue as to whether the Learned Trial Magistrate correctly appreciated the evidence tendered and applied same in entering judgment in favor of the respondent. While dealing with issue number two [2] elsewhere herein before, I have pointed out that the impugned actions by and on behalf of the 1st appellant, were illegal, unlawful and indeed unconstitutional. 80.In addition, I also wish to point out that the respondent placed before the trial court assorted documents, including copies of receipts; annual reports and financial statements. The annual reports and the financial statements were clearly prepared by an expert. The opinion thereunder was never challenged and/or impugned. 81.Moreover, it is apposite to state that the appellants herein did not cross examine the respondent [PW1] as pertains to the contents of the annual reports and the financial statements. It is also not lost on me that the appellants did not procure any contrary expert report, to challenge and or impeach the annual reports produced by the respondent. 82.In the absence of a contrary expert report, the Learned Trial Magistrate was right in finding and holding that the documentation tendered by the respondent had indeed proved the special claims pleaded. It is common ground that special damages must be strictly/specifically proved. However, what constitutes strict proof, depends on the circumstances of each case. There is no hard and strict rule as pertains to what must be tendered, in an endeavor to establish strict proof. 83.In the case of Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Company Limited [2004] KECA 145 (KLR), the Court of Appeal discussed the legal position pertaining to proof of special damages. The court underscored the fact that despite the necessity to specifically prove same, the circumstances surrounding each case, must to be taken into account. 84.The court stated thus:“There is a long line of authorities on that principle but we only cite Eldama Ravine Distributors Ltd & Anor vs Samson Kipruto Chebon C.A No. 22/1991 (ur) where the court stated:“It has time and again been held by the courts in Kenya that a claim for each particular type of special damage must be pleaded. In Ouma v. Nairobi City Council (1976) K.R 304 after stressing the need for a Plaintiff in order to succeed on a claim for specified damages, Chesoni, J. quoted in support the following passage from Bowen, L.J’s judgement on page 532, 533, in Ratcliffe v. Evans (1892) 2Q.B 524, an English leading case on pleading and proof of damage:“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”There was a specific pleading in this case of the special damage suffered and a valuation for it. The challenge is that there was no strict proof. What amounts to strict proof must of course depend on the circumstances as was stated in Ratcliffe’s case, that is to say, the character of the acts producing damage, and the circumstances under which those acts were done.” [emphasis supplied].” 85.Before concluding on this issue, I wish to reference the holding in the case of Attorney General v Zinj Limited [2021] KESC 23 (KLR), where the Apex Court spoke to the necessity to avail a contra expert opinion, in a endeavor to impeach the opinion of another expert. 86.The court stated thus:“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. Even if there had been one such other report, our jurisdiction to interfere would still have been largely circumscribed, unless the award had clearly ignored the fundamental principles of valuation as demonstrated by the counter-report.” 87.Without belaboring the point, it is my finding and holding that the Learned Trial Magistrate correctly guided himself, when same deployed and relied on the expert reports, as the basis of awarding special damages. To this end, I find no error or at all. On the contrary, I find that the Judgment was well grounded. Conclusion 88.It is the appellant who had contended that the Learned Trial Magistrate failed to appreciate the totality of the evidence tendered and thus arrived at an erroneous conclusion. It was therefore incumbent upon the appellants to demonstrate the misapprehension and misapplication of the evidence by the Learned Trial Magistrate. 89.However, I wish to state that I have reviewed the evidence that was placed before the Learned Trial Magistrate and applied the provisions of Sections 91 of the Petroleum Act, Chapter 308 Laws of Kenya; and I beg to underscore that I have not discerned any error committed by the Learned Trial Magistrate. 90.On the contrary, evidence abound to demonstrate that the offensive actions by the 1st appellant, were undertaken illegally. The Judgment by the Learned Trial Magistrate is therefore well grounded and unassailable. It deserves affirmation. I hereby affirm same. 91.Finally, I wish to take cognizance of the observation in the case of Annacherry Limited v Attorney General [2014] KEHC 8304 (KLR). The court [per Isaack Lenaola – Judge as he then was] stated thus:“This is indeed a sad and distressing Petition. It is not expected that the State, in this age and time and with a robust Constitution such as ours, can actively participate in acts of impunity such as the forceful take-over of personal property without due compensation. The take-over has lasted 30 years and that makes the said action all the more disturbing.” 92.The words and the observation[s] apply to the subject matter with equal force. It is time that Government operatives; State agencies; State instrumentalities; and Public officers, appreciate the values and principles underpinning the Constitution, 2010. Final orders: 93.Pulling the threads together, and considering the analysis contained in the body of the Judgment, the final orders that commend themselves to the court are:i.The Appeal be and is hereby Dismissed.ii.The Judgment of the Learned Trial Magistrate dated the 12.02.2026, and the consequential decree be and are hereby Affirmed.iii.However, and for the avoidance of doubt, the award of damages at the foot of the Judgement shall be borne by the 1st appellant only and not the Honourable Attorney General [2nd appellant].iv.Costs of the appeal be and are hereby awarded to the respondent.v.The costs in terms of clause [iv] above shall be borne by the 1st Appellant [Energy and Petroleum Regulator Authority].vi.The costs shall be agreed upon and in default be taxed in the conventional manner.vii.The Orders of stay of execution which were issued on the 24.03.2026 be and hereby discharged. 94.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 13TH DAY OF JULY, 2026.OGUTTU MBOYA, FCIArb; CPM [MTI].JUDGEIn the presence of:Court Assistant: ZakayoMs. Miranda Senior Litigation Counsel for the appellantsMr. Thuranira Atheru for the Respondent.