Wakilii

Municipal Board of Mombasa v Kala and Another (Civil Appeal No. 13 of 1955)

East African Court of Appeal · [1955] EACA 313 · 1955 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Supreme Court of Kenya following judgment for damages for trespass
Decision
Appeal dismissed but damages substantially reduced from Sh. 20,000 to Sh. 2,000

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that a demolition notice issued by municipal officers without prior Board authority was invalid and incapable of ratification because the Board was required to exercise a judicial discretion before issuing such notice. By-law 127 was held intra vires as it dealt with structural safety rather than public health. The appeal was dismissed but damages were reduced from Sh. 20,000 to Sh. 2,000 as the trial judge applied the wrong principle in awarding special damages for diminution of site value without evidence.

Outcome

Appeal dismissed but damages substantially reduced from Sh. 20,000 to Sh. 2,000

Facts

In August 1951, a fire damaged a three-storey building in Mombasa. The Municipal Engineer served a notice under by-law 127 requiring repairs. In August 1952, the respondents purchased the property for Sh. 22,500 and proposed repair schemes. On 28 January 1953, the Municipal Engineer and Town Clerk, without prior Board authority, served a fresh notice requiring demolition within seven days. After the respondents' repair proposals were rejected, the Board demolished the building on 16 March 1953. The respondents sued for trespass. The trial judge found the notice invalid and awarded Sh. 20,000 damages, including for diminution of site value because only a one-storey building could now be erected whereas the demolished building had been three storeys.

Issues

  1. Whether a notice to demolish issued by servants of the Municipal Board without prior authority from the Board was valid.
  2. Whether such an invalid notice could be ratified by the Board after the fact.
  3. Whether by-law 127 of the Mombasa Municipality (Building and Sub-division) By-laws was ultra vires the Municipalities Ordinance and inconsistent with the Public Health Ordinance.
  4. What was the proper measure of damages for unlawful demolition of a building.

Orders

  • Appeal dismissed.
  • Damages reduced from Sh. 20,000 to Sh. 2,000.
  • Each party to bear its own costs of the appeal.
  • Order as to costs in the court below to stand.

Rules and key headnotes

Administrative Law — Delegation of Powers — Exercise of Statutory Discretion — Requirement for Prior Authority
Where a by-law provides that a municipal board may cause a notice to be served and requires the board to exercise a discretion, officers of the board acting on their own authority without prior reference to or authority from the board cannot validly serve such notice.
Administrative Law — Ratification — Judicial Acts — Limits on Ratification
Where a statute requires a public body to exercise a judicial discretion before issuing a notice, and servants of that body issue the notice without prior authority to exercise that discretion, the notice is incapable of subsequent ratification by the body.
Administrative Law — Ratification — Distinction Between Committee Authority and Servant Authority
The principle that a corporation may ratify the act of a duly authorised committee does not extend to ratification of the prior act of a servant of the corporation who had no previous authority to exercise discretion on behalf of the corporation.
Statutory Interpretation — By-laws — Ultra Vires — Consistency with Parent Legislation
A municipal by-law dealing with dangerous structures and structural safety is not inconsistent with or repugnant to public health legislation concerned with the maintenance of public health, and is therefore intra vires the enabling ordinance.
Statutory Interpretation — By-laws — Benevolent Interpretation — Public Representative Bodies
By-laws of public representative bodies clothed with ample authority ought to be supported if possible, benevolently interpreted, and courts should be slow to condemn them as invalid on grounds of supposed unreasonableness or inconsistency.
Damages & Quantum — Special Damages — Diminution of Site Value — Proof Required
The true measure of special damages for unlawful demolition of a building is the injury to the reversion or the diminution in the site value of the land, and where there is no evidence of such diminution, special damages should not be awarded.
Damages & Quantum — Special Damages — Diminution of Site Value — Requirement to Establish Right to Repair
To support a finding of special damages arising from diminution of site value following demolition, a plaintiff must establish the right to repair the building as opposed to re-erecting it; failure to do so precludes an award for diminution of site value.

Legislation cited (10)

  • Mombasa Municipality (Building and Sub-division) By-laws by-law 127
  • Municipalities Ordinance s.77
  • Municipalities Ordinance s.132
  • Public Health Ordinance s.118(1)
  • Local Government (Municipalities) (Amendment No. 2) Ordinance (No. 54 of 1948) s.5
  • Municipalities Ordinance s.10
  • Local Government (Municipalities) Ordinance (No. 19 of 1928) s.33
  • Municipalities Ordinance s.34
  • Public Health Ordinance s.124
  • Public Health Ordinance s.115

Cases cited (13)

  • Cheetham v The Mayor of Manchester (1875) 32 LT 28
  • Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712
  • Firth v Staines (1897) 2 QBD 70
  • R v Chapman (1918) 2 KB 298
  • St Leonards Vestry v Holmes (1885) 50 JC 132
  • Bowyer Philpott & Payne Ltd v Mather (1919) 1 KB 419
  • Limbe Town Council v Kirkcaldy (1946) 13 EACA 65
  • Kruse v Johnson (1898) 78 TLR 647
  • Jamal Pirbhai and others v Municipal Council of Nairobi (Civil Case No. 156 of 1940)
  • Nalder v Ilford Corporation (1950) 2 AER 903
  • Cook v Ward (1877) LR 2 CP 255
  • Corsellis v London County Council (1908) 1 Ch 13
  • Lyster v Goldwin (1839) 114 ER 57

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Municipal Board of Mombasa v Kala and Another (Civil Appeal No. 13 of 1955) [1955] EACA 313 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.