The county government of Mombasa suffered a major setback after it was ordered by court to pay a property company a total of KES 96 million in relation to demolition of its (company) residential house in the upmarket Nyali area.
This followed a declaration by the Environment and Land Court (ELC) that the county government’s demolition of Blue Bells Properties Ltd’s house in Nyali Estate, Mkomani Road was irregular, unlawful and in contravention of the constitution.
The county government was ordered to pay Blue Bells Properties Ltd KES 76 million, being the current cost for reconstruction of the demolished house and KES 15 million as costs of destroyed, vandalized household goods and items in the premises at the time of demolition.
It was also ordered to pay the company KES 5 million as general damages for trespass and loss of user.
The ELC ruled that it was clear that the county government’s action of demolishing the plaintiff’s (Blue Bells Properties Ltd) house without first summoning it to court were patently un-procedural and unlawful.
“The notices issued to the plaintiff had expressly provided what would happen in case of default and the demolition was therefore malicious and done in bad faith,” ruled the ELC.
The court further ruled that it was unclear where the defendant (county government) got the idea that when the plaintiff failed to comply with its notice, it had the power to destroy the building.
The ELC said that 'it was telling that while the notices dated September 29, 2015, gave the plaintiff 30 days within which to comply, the defendant had moved a week before the expiry to destroy the residential house.
“It was also clear to me that by proceeding to the property and unlawfully demolishing the plaintiff’s house, the defendant was guilty of trespass,” ruled Justice James Olola.
He added that the plaintiff had loss of user of its premises and was entitled to general damages.
The ELC also noted that 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,” noted the ELC.
Blue Bells Properties Ltd told the court that that sometimes in 1980 or thereabouts, it had erected a residential house on the suit property and that it had modified it from time to time.
It told the court that sometime in September 2015, the defendant issued it with notices purporting that the residential house had cracks, requiring it to make repairs.
The plaintiff said that whereas the premise was a fairly old house with minor cracks, it was in a habitable condition, and the minor cracks did not render it unfit for occupation and a nuisance.
Blue Bells Properties Ltd further told the court that while it was planning to repair the cracks, the county government moved into the premises on October 22, 2015, and contrary to the express terms of the notices issued proceeded to demolish it.
The county government admitted that it served Blue Bells Properties Ltd with notice and asserted that the defects exhibited in the residential house were serious and required timely intervention.
The defendant said that the plaintiff did not repair the defects as required and that it proceeded to demolish after affording it (plaintiff) sufficient time to remedy them.
The county government stated that the demolition carried out was regular and lawfully supervised by its responsible officers to ensure that it did not cause injury to any individual or cause damage to neighbours.
