Court awards Sh20m damages to Mombasa businessman

A businessman has been awarded Sh20 million in compensation for damages and losses incurred when his businesses premises were burned down during the 2007-2008 post-election violence.

Justice Ann Omollo, on March 12, ordered the government to compensate Mr Samuel Mwangi Gatoto, who runs a night club and a guest house at Diani, Kwale County.

“It is my finding that the state failed in its obligation to protect the plaintiff’s business which was burnt down,” said Justice Omollo during the ruling.

She said that even if there was no breach of such duty, the businessman was entitled to compensation like other victims of the post-election violence as paid out by the state.

Mr Gatoto, the Diani Farmers Day and Night Club and Gombato Guest House proprietor, had sued the Attorney General.

The judge said she found the defendant liable to compensate the plaintiff for the loss and damages he suffered as a result of the post-election violence and awarded him Sh15.7 million being costs of renovations and Sh5.1 in the value of looted items.

BURNT ORANGES

However, the Judge declined to award Mr Gatoto any compensation for burnt oranges since there was no agricultural officer’s report.

Justice Omollo said that given that the defendant witness, a former Diani police station commander, was aware of the burning of the guest house, it was not stated that after the incident, security was deployed to protect Mr Gatoto.

The judge said the court took judicial notice of the resettlement programmes undertaken by the government to resettle internally displaced persons who were rendered homeless as a result of the post-election violence of 2007 – 2008. 

She said the programmes involved a process of being given alternative plots to settle on and some funds to put up structures. 

DISCRIMINATION

“If a fund or a program was set up to take care of the victims of the post-election violence, then such programme should not be undertaken in discrimination of others,” said the Judge. 

In his evidence, Mr Gatoto said on December 30, 2007 violence erupted as a result of the disputed election results between former President Mwai Kibaki and former Prime Minister Raila Odinga.

Mr Gatoto told the court that his club had been running since 1975. He told the court that area residents supported Mr Odinga and since he (Gatoto) was born in Nyeri, he was told to return where he came from. 

The plaintiff said that despite reporting at Diani police station that his guest house was burning and property being looted he never got help from the police.

DISMISS CASE

The AG, who wanted the court to dismiss the case, said he had no knowledge of the allegations of loss and damage suffered by the businessman.

According to the AG, the government’s duty is to provide security to all Kenyans and not specific to the plaintiff.

He said that the government was not liable to the acts of violence of the mob and that the case was statutorily time barred.

Justice Omollo said she was satisfied that the plaintiff had proved that he had suffered loss. She said that the plaintiff had also given the nature and extent of losses incurred in his documentation filed and admitted in evidence by consent.