Nearly 11 years after county bulldozers reduced a Nyali beachfront home to rubble, the Environment and Land Court has delivered a costly verdict against the County Government of Mombasa, declaring the demolition unlawful and ordering it to pay KSh96 million in compensation to the property’s owner.
In a judgement that sharply defines the limits of county enforcement powers, Justice James Olola ruled that the county violated both the Public Health Act and Article 40 of the Constitution, which protects the right to property, when it demolished the house without first obtaining court orders.
The decision closes one of Mombasa’s longest-running demolition disputes, a legal battle that began after county officials flattened the house on October 22, 2015, claiming it had developed dangerous structural cracks.
Instead, the court found that the county ignored the very law it purported to enforce.
“The Defendant’s action of demolishing the Plaintiff’s house… were patently un-procedural and unlawful,” Justice Olola ruled, adding that the demolition was carried out “maliciously and done in bad faith.”
Demolished Before Time Ran Out
The dispute pitted Blue Bells Properties Limited against the County Government of Mombasa over a residential house standing on Subdivision No. 1371 (Original No. 836/6), Section I Mainland North, along Mkomoni Road in Nyali.
According to court records, the company had constructed the house around 1980 before renovating and improving it over subsequent decades.
The property occupied approximately 0.41 acres in one of Mombasa’s most exclusive neighbourhoods.
Trouble surfaced in April 2015, when county officials conducted inspections of seafront buildings.
Months later, on September 29, 2015, the county government served the company with notices issued under Section 119 of the Public Health Act.
Officials said the house had developed cracks and directed the owner to repair them within 30 days.
Blue Bells acknowledged receiving the notices.
Blue Bells director, Haroon Butt, however, maintained that while the ageing building had minor cracks, it remained habitable and safe.
He testified that the company had already begun arranging repairs when events overtook them.
Instead of waiting for the notice period to lapse, county officials arrived barely three weeks later.
On October 22, 2015, excavators demolished the entire house.
Furniture, fittings, and household belongings were either crushed beneath the debris or disappeared during the operation, the company told court.
County Defended Demolition
The county government never denied pulling down the house. Instead, it argued that the structure posed a serious danger.
Its witness, Paul Ogweno Manyala, the Director of Physical Planning, told the court the defects required urgent intervention.
According to the county, the owner had ignored repeated warnings.
Demolition therefore became necessary to protect public safety, it argued.
That defence, however, unravelled under close legal scrutiny.
The Law Required a Court – Not a Bulldozer
Justice Olola’s judgement turned largely on the proper interpretation of Sections 119 and 120 of the Public Health Act.
The judge agreed that county health officials possess authority to inspect buildings and issue notices requiring dangerous defects to be repaired.
That power, however, has clear statutory limits.
If an owner ignores the notice, the law requires health officers to file a complaint before a magistrate.
The magistrate then determines whether a nuisance exists and decides what orders should follow.
Those orders may include compelling repairs, closing the building, or imposing penalties.
What the law does not permit is unilateral demolition by county officials.
Justice Olola found it remarkable that the County Government appeared fully aware of that legal procedure.
Indeed, its notice warned Blue Bells that failure to comply would result in a summons before the Resident Magistrate’s Court.
That never happened.
Instead, the county bypassed the courts altogether and demolished the house itself.
Even more damaging was the timeline.
The notice granted the company 30 days to carry out repairs.
Yet the demolition occurred about a week before that period expired.
For the court, that single fact was significant.
It demonstrated that the owner had been denied the very opportunity the county had promised.
Justice Olola questioned where the county derived authority to destroy the property when neither the Public Health Act nor its own notices permitted such action.
A Constitutional Violation
The court determined that the demolition violated the Constitution due to the disregard for statutory procedures.
Article 40 protects every person’s right to acquire and own property.
Although governments may regulate unsafe buildings, they must still respect due process.
The judgement stressed that public authorities cannot sidestep legal safeguards merely because they believe their objective serves the public interest.
Citing earlier judicial authority, Justice Olola observed that fairness demands public bodies strictly follow procedures established by legislation before exercising coercive powers.
That principle proved decisive.
Expert Evidence Unchallenged
Having established liability, the court turned to compensation.
Blue Bells sought KSh76 million, relying on a professionally prepared Bill of Quantities dated September 2024, which estimated the current reconstruction cost of the demolished residence.
The county government produced no independent valuation.
Nor did it call any expert witness to dispute the reconstruction estimate.
Justice Olola consequently accepted the company’s expert evidence, noting that courts generally have little basis for rejecting uncontroverted expert opinion.
The judge therefore awarded the full KSh76 million reconstruction cost.
Household Goods Compensated
The company had additionally claimed KSh22 million for furniture, household items, and valuables allegedly destroyed or stolen during the demolition.
Although the court accepted that the residence had been fully furnished, it found the precise value impossible to establish with certainty.
Photographs confirmed household items existed inside the home before demolition.
Still, documentary proof for every claimed item was unavailable.
Balancing those competing realities, Justice Olola awarded KSh15 million instead of the amount sought.
Damages for Trespass and Loss of Use
The court further found that the county’s unlawful entry onto private land constituted trespass.
Blue Bells also lost the use of its residence for more than a decade while pursuing justice.
Considering the property’s prime Nyali location and the complete deprivation suffered by the owner, Justice Olola awarded KSh5 million in general damages for trespass and loss of use.
The company had urged the court to impose exemplary damages.
The judge declined.
While describing the county’s conduct as being in bad faith, he found no evidence officials acted to obtain financial gain, a necessary ingredient for punitive damages under established legal principles.
The judge also ordered that interest be applied to all awarded amounts until payment is made in full.
Additionally, the county would be responsible for covering the costs of the lawsuit.
Slow Litigation
The litigation itself illustrates how slowly complex property disputes sometimes move through Kenyan courts.
Blue Bells filed the suit in 2016, initially seeking orders compelling the county to rebuild the demolished residence.
Years later, after director Akhtar Butt died in 2021, the company successfully amended its pleadings to seek monetary compensation instead of reconstruction.
The Environment and Land Court dismissed the county’s objections to those amendments in a 2023 ruling, allowing the matter to proceed to a full hearing.
That procedural victory ultimately paved the way for last week’s substantive judgement.
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