ENVIRONMENTAL & COMBUSTION CONSULTANTS LIMITED VS THE COUNTY GOVERNMENT OF KAJIADO

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

KAJIADO LAW COURTS

CIVIL SUIT NO 10 OF 2018

ENVIRONMENTAL AND COMBUSTION CONSULTANTS LTD ……….…PLAINTIFF

VERSUS

THE COUNTY GOVERNMENT OF KAJIADO ……………………….......DEFENDANT

JUDGMENT

Background

1. The Plaintiff has filed a Plaint dated 13^th April 2018 against the Defendant seeking damages arising from alleged acts of destruction of the Plaintiff’s premises by the agents and/or officials of the Defendant. In the statement of claim, the Plaintiff has stated that the Plaintiff Company was founded in 1995 with the aim of managing hazardous industrial waste. The Company initially operated on land known as LR No. Kajiado/Kitengela/1899 and 8200 situated in Kitengela Town. It later relocated to parcel No. Kajiado/Kaputiei-North/24604, measuring 11.38 hectares, situated in Stony Athi area within Kajiado County.
2. The Company stated that it followed the law and the laid down procedures in applying for the change of user of the subject land from agricultural to commercial/industrial use, put up a perimeter wall around the land to enhance security, installed a generator, sank a borehole for water supply and an created an all-weather murram road. The Plaintiff also acquired all the requisite licenses for the company’s operations and developed the land by erecting buildings, acquiring project authorization from the then County Council of Olkajuado, complied with the requirements of the Environmental Management and Coordination Act and obtained an Environmental Impact Assessment Licence on 9^th July 2014.
3. The Plaintiff stated further that it installed an incinerator with a capacity of 1,000 tons of hazardous waste per month and procured and installed the necessary industrial plant equipment and machinery.
4. It is claimed that on 21/8/2014, the Plaintiff’s Managing Director was summoned by Mr. Joshua Mjakusi, the then County Executive Officer for Lands and Environment for a meeting with the County Governor on the same day. That meeting was held in the Governor’s Boardroom and that although the Governor did not attend the meeting, members of County Assembly and senior officers in the County Government as well as officers from NEMA were present. That the County Government Officers sought information regarding the value of the Plaintiff’s investment and whether the Plaintiff had obtained an EIA license.
5. Th Plaintiff has claimed that while he was attending the meeting, he received a telephone call from the Plaintiff’s premises that the MCA for Matapato Ward, Hon. Mr David Nkirimpai had ferried people dressed in Maasai traditional attire (shukas) to an area a few metres from the Plaintiff’s premises. The group, after feasting on goat meat, destroyed the perimeter fence of the Plaintiff’s premises and set it on fire claiming that the Plaintiff had not met NEMA requirements.
6. The Plaintiff sought legal redress by instituting Nairobi High Court J.R Application No 350 of 2014; Republic -vs- The County Government of Kajiado and 3 others, Exparte Environmental and Combustion Consultants Limited and obtained restraining orders against the Defendant from further destroying the property. Protected by the said orders, the Plaintiff re-developed its premises and installed new equipment and resumed its operations.
7. The Plaintiff claims that on 26/1/2017 the Defendant, through its agents, sent hired rowdy youths to the Plaintiff’s premises. They vandalized the premises. The Plaintiff sought intervention from the police who repelled the rowdy youth, but they refused to leave giving reasons that they were waiting for the Governor. That, the Governor arrived and ordered the premises to shut down and warned the Plaintiff from continuing with the operations of the premises in the area.
8. The Plaintiff has claimed that he was invited to a meeting with the Governor on 27/1/2017 at Bush Camp in Kajiado. He was instructed by the Governor to shut down the premises. That the Plaintiff was summoned for another meeting held on 30/1/2017 during which the Plaintiff informed the Governor that he would require 10 years to relocate; On 16/3/2017 the Plaintiff’s property was again vandalized by the Defendant who completely paralyzed his operations by destroying all the machines and set the place ablaze.
9. The Plaintiff claims that the actions of the Defendant are illegal, unlawful and a breach of his rights under articles 40 and 47 of the Constitution of Kenya and that the actions of the Defendant caused the Plaintiff to suffer (i) Value of the land ……………………...Kshs. 168,000,000

(ii) Value of the improvements………..…Kshs. 104,000,000

(iii) Value of loss of assets………………..Kshs. 128,000,000

(iv) Loss of business……………………….Kshs.350,000,0000

1. The Plaintiff prays for judgement against the Defendants in the following terms:
2. Kshs 400,000,000, the value of the Plaintiff’s assets being destroyed by the Defendant.
3. Kshs. 350,000,000 being the total loss of business suffered by the Plaintiff.
4. General Damages
5. Interest in (a) and (b) above at commercial rates from 16^th March, 2017 until payment in full.
6. Costs of the suit
7. Any other reliefs and orders that this Honourable Court may deem just and appropriate in the circumstances of this case.

The Defence

1. The Defendant filed an amended Statement of Defence dated 14^th January, 2018 in which the Defendant has denied the allegations levelled against it. The Defendants denied issuing any summons or notices to the Plaintiff. It denied that the Governor summoned the Director of the Plaintiff as alleged by the Plaintiff or ferrying any officials to the Plaintiff’s premises.
2. The Defendant stated, however, that if the same occurred then the officials should be held personally accountable and criminal action taken against them. That the actions of the Governor of Kajiado County cannot bind the Defendant as alleged by the Plaintiff and if any such statements were made, which the Defendant denied, then the same cannot attribute liability to them.
3. The Defendant further denied holding any meeting between the Plaintiff and the Defendant and that the compensation of land, value of improvements, value of assets and loss of business cannot issue in the circumstances.

Plaintiff’s Evidence

The matter proceeded to hearing on 14^th March, 2022. The Plaintiffs called a total of 3 witnesses. The first witness was Phillip Ogwari Mwabe (PW1), the managing director of the Plaintiff. He adopted his witness statement dated 13/4/2018 as his evidence in chief and produced a list of documents as PEx 1. He reiterated the contents of the Plaint and his witness statement.

1. His case is that the County Government of Kajiado started harassing the Plaintiff from 2014 claiming that it did not have approvals to operate; that the Plaintiff’s machinery was emitting a foul smell and that the harassment led to file a Judicial Review case mentioned to stop the interference.
2. Titus Ochieng Mugijo (PW2), a mechanical engineer employed by PW1 testified that in 2017 he was the plant manager at the Plaintiff’s premises at Stoni Athi. He adopted his witness statement dated 16/11/2021 as his evidence in chief.
3. His evidence on cross examination is that he was on duty on 16/3/2017; that there were 3 police officers stationed at the Plaintiff’s Plant but that they had been recalled from their guarding duties by Isinya Police Station; that after the police left, a group of led by an MCA attacked the facility; that the group became rowdy and started getting into the compound as he was talking to the MCA, threatening to destroy the factory. He stated that they called the police who rescued them at around 11: 30 am and that after leaving the premises, the rowdy group, numbering about 200, continued destroying the property.
4. Nichodemus Mwangangi Mwavu, (PW3) a valuer by profession testified that he carried out valuation of the Plaintiff’s company in June 2016 and prepared a report dated 24/6/2016. He produced the Report in court.
5. On cross examination he stated that he was not a registered valuer and explained that the purpose of the valuation was for bookkeeping and not loss assessment as he was not trained on that. He further stated that the valuation was carried out before the loss occurred and that he could not tell the loss suffered. He stated that from the valued figure one could not tell the value of the individual buildings.

Defendant’s evidence

1. The Defendant called one witness, Peter Parsiato Pushati (DW1) the Director of National Resources and Climate Change in Kajiado County. He adopted his statement dated 28/2/2023 and testified that he was not the director of environment at the time of the incident, however, there were complaints from residents about the Plaintiff. He stated that he did not see any document showing that the Plaintiff’s premises were to be stopped. He however produced a judgement and report dated 8/6/2020 as DEx 1.
2. On cross examination he stated that he joined the Defendant in June 2022as an environment officer and that at that time, the events giving rise to this case had happened and this case filed.  He stated that he was not aware that the Plaintiff’s property was burnt down twice; that according to the judgment he produced as evidence, the Defendant was found to have interfered with the Plaintiff’s operations and that he was not aware that the Defendant appealed that judgment He stated that he did not see a letter from the Governor to close the factory and that he was not aware the Governor was punished for contempt of court.

Submissions

1. Parties herein filed their submissions. The Plaintiff filed its submissions dated 10^th November, 2023 and raised 3 issues for determination as follows:
2. Whether the Plaintiff’s property was vandalized and burnt down on 16^th March 2017? If so, is the Defendant responsible for the said vandalism and burning down of the Plaintiff’s property?
3. Whether the Plaintiff has successfully discharged its evidentiary burden of proof by proving its case against the Defendant on a balance of probabilities?
4. Whether the Plaintiff has specifically pleaded and proved the special damages it seeks and therefore warrants to be awarded the same?
5. On the first issue, it was submitted that the Plaintiff has proved that its property was vandalized and burnt down on 16/3/2017. That they have produced documentary evidence, photographic evidence and that PW1 andPW2 testified to the events of the vandalization and setting up the premises and that DW1 did not deny this occurrence in his testimony.
6. The Plaintiff argued that the Defendant was responsible for the vandalization and setting on fire the Plaintiff’s premises. That the Plaintiff’s witnesses have given an account of meetings that were held between the Managing Director of the Plaintiff and the Governor of Kajiado County during which the Governor together with his senior officials wanted the operations of the Plaintiff stopped. It was submitted that these hostilities led to the events of 16/3/2017. It was further submitted that the Defendant un-procedurally withdrew the security officers who had been hired by the Plaintiff to guard the premises at Stoni Arthi. That the withdrawal of police officers enabled rowdy youth who had been mobilized, hired and ferried to the Plaintiff’s premises by the Defendant to vandalize and burn down the property. It was submitted the Defendant’s officials, Mr. Joshua Mjakusi the then County Executive Officer for lands and Environment and Mr. David Nkirimpai the then member of the Defendant’s County Assembly were not called to testify and shed light on what transpired and therefore the testimony of PW2 remains uncontroverted.
7. The Defendant relied on Stanley Mombo Amuti -vs- Kenya Anti-Corruption Commission [2019] eKLR, where it was held that:

“We note that the failure to call a particular witness or voluntarily to produce documents or objects in one's possession is conduct evidence. (See J. Wigmore, Evidence § 265, at 87 (3d ed. 1940). In principle, failure by a party to call a material witness may be interpreted as an indication of knowledge that his opponent's evidence is true, or at least that the tenor of the evidence withheld would be unfavorable to his cause. Comparatively, in Bukenya and Others -v- Uganda [1972] EA 549, it was stated that a court may infer that the evidence of uncalled witnesses would have tended to be adverse. In Mann Holdings Pte Ltd and another Ung Yoke  Hong  [2018]  SGHC  69,  the  Singapore  High  Court  drew  adverse inference against a party who had failed to call crucial witnesses to testify at trial. In Elgin Finedays Ltd -v- Webb 1947 AD 744, it is stated at 745:

“… it is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial court, this failure leads naturally to the inference that he fears such evidence will expose facts unfavourable to him …”.

1. It was the Plaintiff’s argument that it is trite law that the actions of the aforementioned individuals in their capacity as elected leaders, appointed officials of government or public officers are attributable to the government. They relied on the case of Kenya Union of Domestic, Hotels, Education and Allied Workers (Kudhehia Workers) -vs- Salaries and Remuneration Commission (2014)eKLR where it was held that:

“What I gather from the above definition is that the criteria for determining whether one is a public officer is quite clear and requires no more than a literal interpretation. First, the person must hold an office either in the national government, county government or public service; secondly, the renumeration and benefits of that officer must be payable directly from the Consolidated Fund or directly out of money provided by Parliament.’’

1. The Plaintiff further relied on Nairobi High Court Judicial Review Application No. 350 of 2014; Republic -vs- The County Government of Kajiado and 3 others, Exparte Environmental and Combustion Consultants Limited where it was held that:

“All the officials named by the Applicant were therefore members of the county government, as they fall in within these categories of membership of a county government, and any functions and actions that are demonstrated to have been undertaken in their capacity as public officials can therefore be attributed to the 1^st Respondent. Put differently, the 1^st Respondent will be deemed to take legal responsibility of any actions shown to have been undertaken by the said officials in their capacity as elected or appointed members of the county government.”

1. The Plaintiff refuted the defence that the actions of the officials of the Defendant were carried out in their private capacity. They termed this baselessness and lacking in any legal capacity. They relied on the case of Teachers Service Commission -vs- WJ & 5others [2020] eKLR which has been quoted at length on the face of their submissions.
2. On the second issue, it was submitted that it is trite that the burden of proof in civil cases is on a balance of probabilities as stated in Miller -vs- Minister of Pensions(1947)2 ALL ER 372 where it was held that:

“The degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; ’we think it more probable than not, the burden is discharged but if the probabilities are equal it is not.

Thus, the proof on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties explanations are equally(un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

1. The Plaintiff submitted that it has demonstrated that the vandalism and burning of its Plant was caused by the Defendant herein; that the Plaintiff has proved this and that although the legal burden of proof rests with the Plaintiff the same may shift to the Defendant on account of the effect of the evidence adduced by them and that the evidential burden shifted to the Defendant. The Plaintiff cited Raila Amolo Odinga & Another -vs- IEBC & 2 others(2017)eKLR where it held that:

“Though the legal and evidential burden of establishing the facts and contentions which will support a party‘s case is static and remains constant throughout a trial with the plaintiff, however, "depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting" and "its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.

It follows therefore that once the court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce factual ‘evidence to prove his/her allegations of breach, then the burden shifts and it behoves the respondent to adduce evidence to prove compliance with the law……”

1. On the issue on whether Plaintiff has proved special damages by demonstrating the value of the investments in Stoni Arthi by exhibiting the valuation report dated 24/6/2016; that the value of the property comprised of land title number Kajiado/Kaputei – North- 24604 measuring 11.38 hectares, improvements made on the land and loose assets situated on the Plaintiff’s property worth Kshs. 168,000,000, 104,000,000 and 128,000,000 respectively; that the valuation report was prepared before the incident happened; that the valuation report is supported by claim form dated 3/4/2017 which lists the Plaintiff’s equipment and assets destroyed during the 16/3/2017 incident, all amounting to a total of Kshs. 444,364,410/- as shown on page 732 of their bundle of documents.
2. It was submitted that the Plaintiff also suffered loss of business as it lost several tenders such as tender No. KNH/T/53/2016-2017 shown on pages 734 to 740 of the Plaintiff’s bundle. It was submitted that the loss of business is quantified at Kshs. 350,000,000/- which is not farfetched as demonstrated through the Annual report and financial statements for the year 2015 and 2016 on pages pages 698 to 714 and 741 to 758 of the bundle. It was submitted that it is trite for special damages to be specifically pleaded and proved as was demonstrated in the Court of appeal case of Hahn -vs- Singh Civil Appeal No 42 of 1983[1985]KLR 716.
3. The Plaintiff submitted that the valuation report was done by an expert and that expert evidence can only be controverted through expert evidence as was held in the case of Parvin Singh Dhalay -vs- Republic (1997) eKLR; that the valuation report dated 24/7/2016 was uncontroverted as the Defendant has not challenged the said report; that receipts and invoices proving special damages have been provided as shown on pages 264 – 697 of the Plaintiff’s bundle
4. It was their submission that this court should award general damages of kshs. 150,000,000/- considering the immense anguish and suffering the Plaintiff and its officials have gone through.

Defendant’s submissions

1. The Defendant submissions are dated 8^th April, 2024. The Defendant has raised 4 issues for determination as follows:
2. Whether this Honourable Court has jurisdiction to hear and determine this matter?
3. Whether the Defendant should be held liable for destructions perpetuated by goons?
4. Whether the Plaintiff is entitled to the reliefs sought in its Plaint?
5. Who should bear the costs of the suit?
6. On the issue of jurisdiction the Defendant relied on a number of cases, among them are Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & Another – vs Kenya Commercial Bank Limited & Others (2012) eKLR. In the latter case it was held that:

“A court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law nor can parties confer a court with jurisdiction where none exists even by consent or much less can it be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction”.

1. They submitted that this court lacks jurisdiction to hear this matter as the Plaintiff’s claim is time barred pursuant to the provisions of section 3(1) of the Public Authorities Limitation Act which provides that “No proceedings founded on a tort shall be brought against the government or a local authority after the end of twelve months from the date on which the cause of action accrued.’’
2. It was submitted that the Defendant is a local authority which is defined in section 2 of the Public Authorities Limitation Act to mean a municipal council, county council, town council, urban or area council and in respect of any function delegated to or conferred upon a local council and that the Defendant would, in the previous regime, be termed as a local authority as per the local authorities Act.
3. It was submitted that the actions brought by the Plaintiff are tortious in nature; that the Plaintiff ought to have instituted its claim against the Defendant on 16^th March, 2018 seeing that the cause of action arose on 16^th March, 2017 instead of 16^th April, 2018 which was outside the twelve-month period; that the suit was filed outside time and without leave of the court to extend the limitation period and is therefore time barred.
4. The Defendant relied on the case of IGA -vs- Makerere University [1972] E.A 65 that:

“A Plaint which is barred by limitation is a Plaint barred by law. Reading these Provisions together it seems clear that unless the Applicant in this case had put himself within the limitation period by showing grounds upon which he could claim exemption, the Court shall reject his claim. The appellant was clearly out of time, and despite the opportunity afforded him by the judge he did not show what grounds of exemption he relied on, presumably because none existed. The effect then is that if a suit is brought after the expiration of the period of limitation, and this is apparent from the plaint, the plaint must be rejected.’’

1. It was submitted that this court should down its tools for lack of jurisdiction over matters that are time barred. Defendant relied on Bosire Ongero -vs- Royal Media Services[2015] eKLR and Dhanesvar -vs- Melita Manilal M Shah(1965)EA 321 where the court was clear that, “the object of limitation enacted is to prevent a plaintiff from prosecuting stale claim. The effect of a limitation enactment is to remove remedies irrespective of the merits of the particular case.”
2. On the second issue for determination, it was submitted that it is not in dispute that the Plaintiff’s premises were vandalized and burnt by goons. The issue is whether the said goons were agents of the Defendant. It is the Defendant’s case that the allegations leveled by the Plaintiff against it are criminal in nature; that the Plaintiff has not demonstrated any evidence to show that the Defendant procured, hired, paid, transported and assisted goons in carrying out the events of 16/3/2017; that the Plaintiff did not demonstrate any employment or agency relationship between the hired goons and the Defendant and therefore, the principle of vicarious liability does not apply in this case.
3. It was submitted that the Defendant is established under Article 176 of the Constitution with its powers, functions and responsibilities spelled out in the County Government Acts 2012; that the three officials named by the Plaintiff were members of the County Government and the Defendant would be held liable if the Plaintiff could demonstrate that any action, function, decision was undertaken in their capacity as public officials or if it shown that the actions undertaken were done in their capacity as elected or appointed members of the Defendant. It is the Defendant’s case that the Plaintiff did not provide evidence showing that the three officials were at the Plaintiff’s property on the material day.
4. Defendant submitted, further, that the actions of the three officials were not authorized by the Defendant and that they acted in their private capacity; that the Governor was held in contempt of court by the Court for issuing a directive to shut down the Plaintiff’s operations and that the Defendants cannot be held liable for personal decisions and individual acts of agents, goons and officials whom they did not authorize.
5. On the third issue, it was submitted that the valuation report was prepared in 2016 before the incident occurred hence the same is not conclusive for purposes of assigning compensation; that the valuer (PW3) admitted in cross examination that he was not a registered valuer at the time of making the report and confirmed that there was no loss adjustment report prepared to ascertain the loss; that without the loss adjustment report this court cannot tell with certainty what was destroyed and what remained intact; that from the photographic evidence some buildings were not completely burnt down and the walls still remain and that the value for the land for Kshs. 168,000,000/- fails to consider that the Plaintiff still holds the suit property in his name.
6. It was submitted that the figures of the loose assets of Kshs. 128,000,000, which constitute the plant and equipment, furniture and fittings, and improvements of Kshs. 104,000,000/- are in the nature of special damages which ought to be specifically pleaded and proved as per the Court of Appeal decision in Richard Okuku Oloo-vs- South Nyanza Sugar Co Ltd(2013) eKLR where it was held that;

“A claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity. For they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree and certainty must necessarily depend on the circumstances and the nature of the act complained of…”

1. It was submitted that the documents produced by the Plaintiff in their bundle from pages 264 to 697 consisted of invoices, quotations, proforma invoices, proforma quotations, local purchase orders, tax invoices, requisitions and instructions to pay and drawn cheques with no proof of clearing; that the figures given on the value of the machinery were exaggerated as the EIA report at page 100 gave a totally different figure from the valuation; that some of the receipts date back to 2006 and cannot be related to the current premises and that a pro-forma invoice on its own would not be sufficient proof of payment as was held in Capital Fish Kenya Limited -vs- The Kenya Power and Lighting Company Limited [2016] eKLR.
2. The Defendant submitted that the Plaintiff did not prove its case and therefore it is not entitled to the amounts claimed; that the Plintiff’s financial statements show that it suffered losses for both years 2015 and 2016; that their claim on loss of revenue could not be substantiated as the contracts produced are merely notifications of awards with no evidence that the Plaintiff agreed to carry out the works and that the Plaintiff did not prove that they were licensed to carry out incineration business for that year and without a valid license at the time they were operating illegally.

Analysis and Determination

1. I read the pleadings in this matter, considered the evidence of the witnesses who testified and the rival submissions. I am persuaded that the main issues that require determination are:
2. Jurisdiction of this Court to handle this matter.
3. Whether the Plaintiff has met the threshold of proof on a balance of probabilities.
4. Costs.
5. It behoves me to determine the issue of jurisdiction first to chart the way forward in the determination of this suit. My careful reading of the pleadings reveal that the Defendant did not raise the issue of lack of jurisdiction by this court in their Amended Statement of Defence. They instead pleaded that “The jurisdiction of this Court is not contested.”
6. The issue of jurisdiction was raised by the Defendant in their submissions. It is trite that parties are bound by their pleadings. It is a requirement in our legal regime that a party approaching the court must package their case in a way that captures all the issues they wish to bring to the attention of the court in order to aid and facilitate the court to know with certainty what it is confronted with and determine the same (See Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR).
7. Can this court determine the issue of jurisdiction when no party has raised it? Phrased differently, can this court raise and determine the issue of jurisdiction suo motu? In Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR, Supreme Court of Kenya was of the view that a court can raise the issue of jurisdiction suo moto. That Court, while citing Odunga J, as he then was, stated thus:

“A jurisdictional issue is fundamental and can even be raised by the court suo moto, as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” vs. Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 stated thus:

25."What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded…”

Consequently, while the parties have not given the jurisdiction issue the much premium that it deserves, upon evaluation of the matter before us, it is our considered opinion that the issue of jurisdiction of this Court to hear and determine this appeal warrants settlement upfront.”

1. Jurisdiction is defined in Black’s Law Dictionary 9^th to mean “A court’s power to decide a case or issue a decree”.
2. In Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders defines jurisdiction in the following terms:

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

1. Numerous decisions, including the Court of Appeal decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, and the Supreme Court of Kenya decision in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR  express the view that a court without jurisdiction has no power to proceed further with the matter before it but must down its tools. In Samuel Kamau Macharia case, the Court stated that:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.  Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.

1. The Court of Appeal in Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLR stated that: -

“So central and determinative is the jurisdiction that it is at once fundamental and over-arching as far as any judicial proceedings in concerned.  It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it once it appears to be in issue in a consideration imposed on courts out of decent respect for economy and efficiency and necessary eschewing of a polite but ultimate futile undertaking of proceedings that will end in barren cui-de-sac. Courts, like nature, must not sit in vain.”

1. I find comfort and confidence in the binding authorities cited here to find that this court can, suo motu, raise and determine the issue of jurisdiction in respect of this case.
2. What are the circumstances of this case that necessitate the issue of jurisdiction to be raised by the Defendant, though in the submissions and that has led to this court raising it, as well?
3. From the Plait and the evidence of the Plaintiff’s witnesses, the Plaintiff is seeking damages arising from destruction of its property through vandalism and arson allegedly committed by the agents or officers of the Defendant. The claim against the Defendant, is clearly a tort. The evidence of the Plaintiff shows that the illegal acts alleged to have been committed by the Defendant through its agents or officers occurred from 2014 and culminated on 16^th March 2017 when it is alleged that the Plaintiff’s premises were vandalized and set ablaze.
4. The details of these claims as shown in the Plaint is that on 21^st August 2014 the Managing Director of the Plaintiff was summoned to attend a meeting at the Governor’s Boardroom in Kajiado Town. It is the evidence of the Plaintiff that during that meeting, attended by officers of the Defendant and NEMA officials, the Defendant sought to know if the Plaintiff had obtained an Environmental Impact Assessment licence. It is claimed that while at the said meeting the Managing Director of the Plaintiff received a call that a local MCA had ferried rowdy youth dressed in Masai traditional attire (shukas) to camp next to the Plaintiff’s premises and that after feasting on goat meat, the rowdy youth destroyed the perimeter fence of the Plaintiff’s premises.
5. It was stated that on 26/1/2017, rowdy youth gathered at the Plaintiff’s premises and vandalized it. Police officers intervened after the Plaintiff sought help but the group refused to disperse demanding to be addressed by the Governor. The Governor is sad to have gone to the place and addressed the youth, after which they dispersed. It is alleged that the Governor told the Plaintiff to stop its operations.
6. It is stated that on 27/1/2017, PW1 was summoned to another meeting in Kajiado Town at Bush Camp where the Governor instructed him to shut down the operations of the Plaintiff. Again on 30/1/2017, PW1 claims to have been called for a meeting by the Defendant on the same issues and told to shut down the operations. Subsequently, on 16/3/2017, the Plaintiff’s business premises was attacked by what the Plaintiff’s witness say were rowdy youth under the instructions of the Defendant and its officers or agents. The rowdy youth is said to have vandalized and set ablaze the premises causing massive damage. These events led to the Plaintiff file this case.
7. Section 3(1) of the Public Authorities Limitation Act (Cap. 39 Laws of Kenya) provides that:

No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued.

1. The Public Authorities Limitation Act describes itself as An Act of Parliament to provide for the limitation of proceedings against the Government and a local authority, and for purposes incidental to and connected with the foregoing.
2. The argument of the Defendant, in its submissions, is that this court lacks jurisdiction to determine this matter because the Plaintiff filed its suit outside twelve months as provided under Section 3(1) cited above, and therefore the suit is time-barred. Before the new constitutional dispensation, the Defendant would have argued the interpretation that places it under the ambit of section 2 of the Public Authorities Limitation because at that time, the Defendant would have been any of the authorities defined under section 2 of Cap. 39 that defines a ‘local authority’ as:

“local authority” means a municipal council, county council, town council, urban or area council, and, in respect of any function delegated to or conferred upon a local council, such local council.

1. The Constitution 2010 introduced two tiers of government: the National Government and the County government established under Article 176 (1) of the Constitution. Article 6(2) of the Constitution is clear that the Republic of Kenya is made up of the two levels of government. It provides that:

“The governments at the national and county levels are distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation”.

1. There can, therefore, be one interpretation, that the Defendant is a county government and that the provisions of section 3(1) of the Public Authorities Limitation Act are applicable.
2. To determine whether the Plaintiff instituted its claim outside the 12 months and therefore outside time, this court needs to confirm the time as computed under Order 50(1) of the Civil Procedure Act. As shown in this judgment above, the events that gave rise to this suit commenced in August 2014 and culminated on 16/3/2017. The plaint was filed on 16^th April, 2018.
3. Order 50 (1) of the Civil Procedure Rules provides that:

Where by these Rules or by any judgment or order given or made, time for doing any act or taking any proceedings is limited by months, and where the word “month” occurs in any document which is part of any legal procedure under these Rules, such time shall be computed by calendar months unless otherwise expressed.

1. To my mind, the computation of time applicable in this matter is the calendar month. A simple counting of the calendar months from March 16^th 2017 to March 2018 shows 12 months. Time started to run from 17^th March 2017 to 18^th March 2018. The conclusion to be drawn is that the Plaintiff filed this claim one month too late, on 18^th April 2018.
2. This leads me to the conclusion that this court lacks jurisdiction to determine this matter by operation of the Public Authorities Limitation Act. As expected of this court in situations where jurisdiction is lacking, I must down my tools at this stage. I have no power to proceed further with the determination of this matter on merit for I possess no authority to proceed to do so. In Hilton v Sultan S. Team Laundry {1946} 1KB 61, 81, the Court expressed itself as follows:

“But the statute of limitation is not concerned with merits, once the axe falls, it falls and a defendant who is fortunate enough to have acquired the benefit of the statute of limitation is entitled to insist on his strict rights.”

1. The outcome of my determination regarding the issue of jurisdiction is that I am not able to proceed to determine the merits or demerits of the Plaintiff’s claim and must bring this matter to an end by downing my tools. Consequently, I hereby dismiss Plaintiff’s case. On the issue of costs, I wish to exercise my discretion and order that each party bears its own costs of this matter.
2. It is so ordered.

Dated, signed and delivered this 21^st day of February 2025.

S. N. MUTUKU

JUDGE

In the presence of:

1. Mr. Agwara for the Plaintiff.

2. Ms Yala holding brief for Mr. Nyaosi for the Defendant.