https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3457

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT MILIMANI** **ELCA NO. E006 OF 2025** **TITUS MUTHUI NGUI - APPELLANT** **VS** **THE INSPECTOR GENERAL OF POLICE - 1ST RESPONDENT** **THE HON ATTORNEY GENERAL - 2ND RESPONDENT** **JUDGMENT** 1. The Appellant [then the Plaintiff] sued the Respondents [then the Defendants] seeking orders that; 2. A declaration that the 1st Defendants' Notice dated 10/1/2022, 15/2/2022, and 5/4/2022 are unfair, irregular, unprocedural, and unlawful. 3. A permanent injunction restraining the 1st Defendant, its agents, servants, and or employees from forcefully evicting, harassing, closing down, or in any manner interfering with the Plaintiffs' operations/business at Capitol Hill Police Station. 4. General damages 5. Costs of the suit 6. Interests on a and c above at Court rates. 7. It was the Plaintiff’s case that, at his request in 2011, the 1st Defendant permitted him to construct a suitable police canteen within the Capitol Hill police station. The canteen included a bar, a restaurant, a barbershop, a salon, and washrooms. In addition, he was engaged by the 1st Defendant to construct a police cell and to provide meals to prisoners as required. 8. That in 2022, the 1st Defendant wrote to the Plaintiff, terminating his operations at the police canteen, as he had been unsuccessful in the tender bid for the operation of the said police canteen. Upon protest, the 1st Defendant extended the Plaintiff's operations for 3 months. On 5/4/2022, the 1st Defendant issued a 21-day notice to the Plaintiff to demolish the canteen structures and to vacate by 30/4/2022. 9. The Plaintiff contended that the 1st Respondents' actions were intended to evict him, as no tender for the canteen's operations was ever offered to him; the Appellant's operation was extended for 3 months despite a contractor having won the tender in October 2021; the Plaintiff was given 21 days to demolish the canteen, which was the subject of the alleged tender; and notice was issued without any justification. 10. The Defendants denied the Plaintiffs' claim in their statement of defence dated 4/10/2022. They stated that the Plaintiff was informed of his unsuccessful bid for tender No MICNG/SDI/KPS/005/2021-2023. The extension offered to the Plaintiff was at his request, as evidenced by the letters dated 16/12/21 and 4/1/2022. A 21-day notice was issued to the Plaintiff to demolish the structures, thereby enabling the new contractor to take possession of the site. 11. It was contended that the 1st Defendant advertised an open tender No MICNG/SDI/KPS/005/2021-2023 on its website, which closed on 7/7/21 at 1000 hrs, subject to the provisions of Section 96 of the Public Procurement and Asset Disposal Act, 2015. The Plaintiff participated in the tender but was unsuccessful, and the outcome was communicated to him by letter dated 18/10/21 (reference SECPOL/1/1/25/2Vol.LL/250), with reasons. On 16/12/21, the Plaintiff requested a 3-month extension, which was allowed from 1/2/22 to 30/4/2022 vide letter dated 9/2/22. In that letter, the Plaintiff was required to resolve all pending issues and hand over the facility upon expiry of the period. 12. Under the letter dated 5/4/22, the Plaintiff was required to remove the temporary structures from the premises by 30/4/22. Instead, the Plaintiff rushed to Court to seek an injunction restraining the Defendants from removing the Plaintiff, thereby allowing the successful contractor to take over the site. The Defendants' view is that the suit was a ploy by the Plaintiff to continue operating on the premises despite clear notice to vacate. Moreover, the Defendants contended that there had been no agreement that they would take over the premises at the end of the operation, and therefore demolition was to be carried out at the Plaintiff's cost and expense. 13. Upon determining the suit, the trial Court, vide its judgment dated 20/12/24, found the Plaintiff's claim to be without merit and dismissed it. 14. It is this decision that has triggered the instant appeal on the grounds set out below: that the learned trial magistrate erred in law and fact in; 15. Finding that the 1st Respondent had publicly advertised the tender for the provision of canteen services for the Capitol Hill Police station without the 1st Respondent producing any evidence to corroborate the assertions. 16. Finding that the Appellants' case was without merit and dismissing the same with costs, while the procedure for the tendering and eviction was marred with procedural improprieties and irregularities. 17. finding that there was no basis to hold the letters issued by the 1st Respondent as unfair and irregular, unprocedural and unlawful. 18. In finding that the 21-day notice dated 15/4/22 was proper without factoring in the Agreement between the Appellant and the 1st Respondent and without issuing of exemplary damages for termination of the said contract by the 1st Respondent. 19. Reasons wherefore the Appellant seeks orders that the judgment delivered on 20/12/24 be entirely set aside and substituted with the finding that the 1st Respondent notices issued by the 1st Defendant dated 10/1/22, 15/2/22 and 5/4/22 are unfair, irregular, unprocedural and unlawful and allow the appeal. 20. The Appellant framed three issues for determination by the Court. On the question of whether the learned magistrate erred in law and fact by finding that the 1st Respondent had publicly advertised the tender, the Appellant submitted that there was no evidence of any tender advertisement, tender documents, evaluation reports, or proof of compliance with statutory procurement requirements. He added that Article 227(1) of the Constitution mandates that public procurement must be fair, equitable, transparent, and competitive, and that parties relying on a tender must produce tangible evidence of compliance with the law. Equally, Section 63 of the Public Procurement and Asset Disposal Act No 32 of 2022 mandates that cancellation and/or termination of procurement proceedings be undertaken only after a valid tender process; hence, in the instant case, there is no evidence of a tender in compliance with the law. In the absence of any tender advertisement or procurement documentation on record, the Court erred in assuming that the tender was lawfully advertised and that the Appellant participated in the alleged tender process. 21. Was the eviction process procedural and lawful? The Appellant submitted that he entered into a contract with the 1st Respondent in 2015 to provide restaurant services. The 1st Respondent's execution of the parties' agreement on 6/12/2016 does not demonstrate that a tender had been initiated and that the Appellant had been unsuccessful, leading to the termination of his services. The notices issued by the 1st Respondent were premised on a non-existent tender. Clause 21 of the canteen agreement provided that the contract could be terminated for breach of its provisions. The Appellant has not breached any provisions of the contract warranting termination. 22. On the third issue in respect to exemplary damages, the Appellant relied on the decision in Godfrey Julius Ndumba, Mbogori & Anor Vs Nairobi City County [2018] eKLR, where the Court defined exemplary damages as follows; “Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter”. 1. Further, it was submitted that exemplary damages are awarded in cases of oppressive, arbitrary, or unconstitutional action by the servants of government; in cases where the Defendant's conduct has been calculated to make a profit for himself, which may well exceed the compensation payable to the Plaintiff; and where exemplary damages are expressly authorised by statute. See Rookes v Barnard [1964] AC 1129. 2. It was submitted that the 1st Respondent, a government official, acted in a manner that led to the arbitrary and unfair termination of the Appellant's contractual rights. The Respondents stand to benefit from the structures erected by the Appellant without making any compensation, hence unjust enrichment 3. The Respondents, despite the directions of the Court, did not file any submissions. **Analysis and determination**. 1. The issues for determination are; 2. Whether the notices issued to the Appellant were lawful 3. Whether general damages are awardable 4. Whether the decision of the trial Court was erroneous. Whether the notices issued to the Appellant were lawful 1. It is the Appellants' case that the notices dated 10/1/2022, 15/2/22 and 5/4/22 were unfair, irregular and unlawful. Before delving into the issue, the background of this case is that the Appellant was, as far back as 2001, allowed to run a canteen at the Capitol Hill police station in Nairobi. It is undisputed that the parties did not execute a service agreement, except for letters of approval issued over time. It is the Appellants' case that, as business grew, he added other services, including serving meals to inmates at the police station. He also avers that he constructed a police cell on the premises on the authority of the 1st Respondent. 2. The point of contention, as it were, in the instant dispute is whether the Appellant was given notice at the time of termination of the service contract. In buttressing his case, the Appellant has argued that the 1st Respondent purported to have issued a tender for the operation of the canteen facility that was not brought to his attention, and, in his view, since the tender was non-existent, the 1st Respondent cannot be allowed to anchor its notice of termination on it. 3. I have carefully reviewed the proceedings and the record of appeal, and it is clear that the 1st Respondent issued a tender for the provision of canteen services on 23/6/2021. The closing date was 7/7/2021. On 18/10/2021, the 1st Respondent informed the Appellant that his tender was unsuccessful for various reasons such as; the certificate of incorporation was not attached; a copy of valid tax compliance was not attached; the duly filed, signed, and stamped tender information form was not attached; a food handling certificate from the relevant authority was not attached; and the site visit form, duly filed, signed, and stamped by the bidder and the client, was not attached. 4. On 4/1/2022, the Appellant, in a letter dated the same day, acknowledged the tender and stated that he had participated in it, noting that something must have gone wrong, as he had all the documents required for the tender, attached all the documents, and even delivered documents to the 1st Respondent physically. In this letter, he sought an extension of the contract, which was declined by the 1st Respondent vide the letter dated 10/1/22, on the grounds that the contract had been awarded to a third party in line with the tender award. 5. In light of the above evidence, the Court is persuaded that the Appellant was aware of the tender for the canteen services; he participated fully in the tender as per his admission in the letter dated 4/1/22; he was unsuccessful in the tender, a fact that was brought to his attention with reasons. His allegation that the tender did not exist is a lie. 6. Notwithstanding that he was unsuccessful in the tender, the record demonstrates that the 1st Respondent accommodated the Appellant, and on 5/4/2022 he was issued with 21 days to remove the structures and vacate the premises. In the absence of any contract between the parties stipulating the terms of notice to vacate the premises, the Court is of the view that the Appellant was accommodated from January to 30/4/2022, about 4 months, and therefore the final notice of 21 days to vacate was valid. 7. Regarding his entitlement to general damages, the Court is of the opinion that, since it has been established that the 1st Respondent did not breach any contract, no general damages shall be awarded in these circumstances. The Appellant was at liberty to remove his structures; hence, no damage was suffered. Moreover, having found that the notice was valid and procedurally sound, I find no grounds to hold the 1st Respondent liable for exemplary damages. 8. On the final issue and in the foregoing, I find that the trial Court correctly applied the law on the facts and evidence before it and reached a sound decision for which I find no fault whatsoever. 9. **Final orders for disposal** 10. In the end, I find the appeal unmerited. 11. It is dismissed with costs in favour of the Respondents. 12. Order accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 8TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered online in the presence of;** 1. Ms. Mutuku for the Appellant 2. N/A for the Respondents 3. C/A – Ms. Yvette Njoroge