On State actions affecting private property being legally and procedurally justified - The Case of Kenya Wildlife Service v Sea Star Malindi Ltd

Case: Kenya Wildlife Service v Sea Star Malindi Ltd
Supreme Court of Kenya Petition No.: E022 of 2024 [2025] KESC 42 (1 July 2025)

1. Background

• Sea Star Malindi Ltd acquired beachfront land in 1994 to develop a hotel.
• In 1997, KWS stopped Sea Star Malindi Ltd from constructing a hotel near Malindi Marine Park, citing environmental protection concerns; alleging encroachment into a marine park buffer zone.
• Sea Star sued KWS for violating its property rights. Sea Star challenged this in judicial review and won in 2002. The Environment and Land Court (ELC) awarded Ksh 120 million in compensation and damages. The trial court relied solely on the earlier judicial review ruling to award Kshs. 90𝐌 in reconstruction costs and Kshs. 30𝐌 in general damages.
• The Court of Appeal upheld the ELC ruling in 2024.
• KWS appealed to the Supreme Court, arguing procedural and substantive errors.
• The Supreme Court set aside the lower courts' decisions, holding that the question of liability must be independently evaluated. It remitted the matter back to the Court of Appeal for a fresh analysis of the evidence on record.

2. Issues for Determination

1. Was the Court of Appeal correct in affirming KWS’s liability and the damages awarded?
2. Was there a risk of double compensation, considering Sea Star had previously been awarded Ksh 709 million in a separate case involving Kilifi County Council?
3. Was the Court of Appeal’s handling of the case procedurally sound?

 

3. Judgment Summary

Court’s Findings:

• The Court quashed the Ksh 93 million award issued by the Court of Appeal.
• Held that the Court of Appeal erred by affirming damages without fully analyzing liability and potential overlap with previous compensation.
• Found that granting relief before determining liability was premature and inconsistent with principles of due process.
• Emphasized the importance of avoiding “double compensation” from public bodies for the same harm.

Court’s Orders:

• The case was remitted back to the Court of Appeal for:
• A fresh determination of KWS’s liability, and
• Reassessment of damages, with caution against duplication of prior awards.
• Costs were not awarded, pending the fresh appellate outcome.

4. Legal Significance

Constitutional & Administrative Law:

• Reinforces the right to property protection under Article 40 of the Constitution.
• Clarifies that state actions affecting private property must be legally and procedurally justified.

Damages & Double Recovery:

• Sets precedent that plaintiffs must disclose all related compensation claims.
• Courts must factor in prior awards to ensure that litigants are not compensated twice for the same loss.

 Procedural Justice:

• Confirms that liability must be conclusively determined before awarding compensation.
• Underlines the role of appellate courts in carefully vetting the foundation of remedies granted by lower courts.

In its judgment in Kenya Wildlife Service v Sea Star Malindi Ltd, the 𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭 𝐨𝐟 𝐊𝐞𝐧𝐲𝐚 has laid down 𝐝𝐢𝐬𝐭𝐢𝐧𝐜𝐭𝐢𝐨𝐧𝐬 between 𝐣𝐮𝐝𝐢𝐜𝐢𝐚𝐥 𝐫𝐞𝐯𝐢𝐞𝐰 𝐩𝐫𝐨𝐜𝐞𝐞𝐝𝐢𝐧𝐠𝐬 and 𝐜𝐢𝐯𝐢𝐥 𝐥𝐢𝐚𝐛𝐢𝐥𝐢𝐭𝐲 𝐜𝐥𝐚𝐢𝐦𝐬 for damages as follows:

Judicial review decisions issued before the 2010 Constitution cannot conclusively determine civil liability. They were limited to procedural scrutiny, encompassing legality, rationality, and propriety, not to factual or merit-based determinations.

The Supreme Court reiterated its prior holding in 𝘑𝘰𝘩𝘯 𝘍𝘭𝘰𝘳𝘦𝘯𝘤𝘦 𝘔𝘢𝘳𝘪𝘵𝘪𝘮𝘦 that judicial review proceedings are jurisdictionally and substantively distinct from constitutional petitions or civil suits. A ruling in judicial review cannot be treated as res judicata in subsequent substantive suits.

Judicial review under the old legal framework (Order 53 of the Civil Procedure Rules and the Law Reform Act) did not and could not address the merits or award damages. Therefore, relying solely on such a decision to determine liability in a civil suit is erroneous.

Courts must independently determine liability by evaluating the pleadings, evidence, and defenses raised. It is a constitutional right of a defendant to have their case heard on its merits.

A finding in judicial review proceedings is not conclusive on liability for damages in a later suit. It cannot substitute the thorough evidentiary assessment required in a civil claim.

An invalid administrative act does not necessarily create civil liability, just as a valid act might still result in liability. Judicial review and civil suits serve distinct legal purposes.

Even if a court quashes an administrative action, damages are not automatic. Liability must be independently proved in civil proceedings.

Judicial review findings can support a civil claim but cannot replace the trial court’s duty to assess liability based on its own evaluation of the facts and law.

Conclusion

The Supreme Court did not absolve KWS of liability but required a fresh, full reconsideration of both fault and compensation. The decision highlights judicial caution where public funds are involved and ensures fairness to both private litigants and state bodies.