Hodhan Mohamud Gedi v Attorney General [2017] KEHC 9789 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 582 OF 2009

HODHAN MOHAMUD GEDI .....................PLAINTIFF

VERSUS

HON. ATTORNEY GENERAL.................DEFENDANT

JUDGMENT

1. Vide an amended Plaint dated 6th December, 2012 the Plaintiff, Hodhan Mohamud Gedi sued the Defendant, the Hon. Attorney General for the return of impounded goods and/or compensation for the same in the sum of Ksh.400,000/=, general damages for loss suffered plus costs and interest.

2. The Plaintiff was at all material times a sergeant in the Administration Police and operated a police canteen within her station in Wajir East District through her agents.  It is claimed that in April, 2009 the Defendant’s agents without any notice confiscated the Plaintiff’s stock and tools from the said canteen.

3. The claim is denied as per the statement of defence dated 15th April, 2010.  It is stated that the Plaintiff was given notice to vacate the Kiosk at the Administration police premises after the Plaintiff was transferred.  That the Plaintiff complied with the notice then proceeded to set up an unauthorized Kiosk within the compound of the Wajir District Development office.  That the Plaintiff was issued with a notice by the District Commissioner to demolish the Kiosk but refused to do so and the Kiosk was subsequently demolished and an inventory of the goods therein made and the goods removed and stored away for the Plaintiff to collect the same but the Plaintiff failed to collect the same.

4. The Plaintiff testified herein (PW1).  The Plaintiff adopted her witness statement.  Her evidence is that she ran the police canteen in question through the assistance of her cousin, Mohamed Noor Osman.  That the Plaintiff moved on transfer and was later issued with a 14 days Notice to vacate the premises through a letter dated 26th March, 2008 but which letter was served on her on 3rd April, 2010.  That the Plaintiff then moved her goods to another premises at the Information Department which had permitted her to do so.  That on 22nd May, 2009 without notice, the new canteen was demolished by Administration police officers who carried away all the goods therein.  The Plaintiff valued her said goods at Ksh.446,715/= and stated that she used to make Ksh.371,874/= at the Kiosk within three months.

5. Mohamed Noor Osman was called to testify as PW2 but his incomplete evidence was later expunged from the record and the Plaintiff’s case marked as closed on 24th January, 2017. The Defendant was not present on 24th January, 2017 though served.  The Plaintiff proceeded to file written submissions.  I have considered the said submissions.

6. The Plaintiff’s evidence was that the canteen was closed at the time of the demolition.  The Plaintiff did not therefore witness the demolition.  The people said to have been at the scene when the canteen was demolished were not called to testify.  The Plaintiff’s evidence on what transpired therefore remains as mere hearsay.  The bundle of documents including the receipts for the purchase of stock for the canteen was not produced as an exhibit.

7. With the foregoing, I hold that the Plaintiff has failed to prove her case on a balance of probabilities in respect of alleged unlawful demolition.  However, it was admitted in the defence that the goods were taken into storage by the Defendant and the Plaintiff’s case succeeds to that extent.  If the Plaintiff’s case for damages had succeeded, I would have awarded for General damages in the sum of Ksh.200,000/=.

8. Judgment is hereby entered for the Plaintiff against the Defendant for the return of the goods in question.  Taking into account the circumstances of this case, each party to meet their costs of this case.

Date, signed and delivered at Nairobi this 6th day of Dec., 2017

B. THURANIRA JADEN

JUDGE