CS Alfred Mutua ordered to remove stinking toilet from luxury Kilifi holiday home
Tourism Cabinet Secretary Alfred Mutua during an interview at his office in Nairobi on October 28, 2022.
Tourism and Wildlife Cabinet Secretary Alfred Mutua has no option but to relocate a smelly toilet at his luxurious Kilifi holiday home that has been a nuisance to his neighbour for the past five years.
This is after the Environment and Land Court in Malindi rejected the CS's application to suspend an order requiring him to move the toilet pending an appeal he intends to file.
Justice Mwangi Njoroge ruled that the complainant in the case, Ms Felicita Conte, who has endured the inconvenience for five years, will suffer a greater loss than the CS will suffer if the toilet is not relocated.
“The defendant (Dr Mutua) should put himself in the shoes of the plaintiff (Ms Conte), whose cries for justice have been confirmed to be genuine by this court, and empathise and comply with the judgment of this court in this matter for amity to exist between neighbours,” the judge said in a judgment dated January 24.
The judge said he had taken into account the fact that the woman's property was significantly diminished by the location of the toilet and that she could suffer greater harm than Mutua if she was not allowed to carry out her judgment.
“On the other hand, only a small portion of the defendant’s property would be affected by the execution of the judgment and I hardly consider that as substantial loss,” said the judge.
Mutua filed an application on August 9, asking the court to grant a stay of execution of the June ruling pending the hearing and determination of an appeal he intends to file.
The CS complained that he had only been given 45 days to relocate the water closet, which is the subject of the dispute with his neighbour.
"Despite initiating the process not of relocation as ordered but of appeal, the plaintiff threatened to institute contempt proceedings against me, which she has now done vide an application filed in September,” Mutua said.
Contempt of court
Conte had also filed an application seeking to have Mutua convicted of contempt of court and sentenced to imprisonment and a fine.
According to the woman, Mutua filed an appeal instead of complying with the judgment and orders requiring him to move the toilet.
“The defendant has also failed to abide by the determination in the suit, thus forcing me to move out of my house and lease another property thus incurring undue expenses amounting to Euros 3,561 (Sh626,078)," she said.
However, the former Machakos governor argued that he would suffer loss if his application was rejected as Conte could apply for the demolition of his property.
“Further, if I am committed to civil jail, the substantial loss I would suffer as a state officer will be unquantifiable,” Mutua said.
On June 8 last year, Judge Millicent Odeny of the Environment and Land Court ordered the CS to move the toilet after agreeing with Conte that the toilet had become a nuisance because of its proximity to her dining room.
Remedy the nuisance
The judge made the decision after noting that despite obtaining the relevant building approvals, including for the extension of an ultra-modern visitors' toilet, these measures were not sufficient to remedy the nuisance caused by the completion of the toilet next to the septic tank.
The pit latrine at Chalet 13 is adjacent to Conte's dining area.
A chalet is a Swiss-style dwelling with low walls and wide projecting eaves, commonly used by holidaymakers.
Conte, who owns Chalet 14 at Karibuni Villa in Mambrui village, took the matter to court in 2018 to prevent Mutua from constructing a water closet near her dining area.
She expressed concern that the toilet would expose her to unpleasant odours in her dining area.
Mutua, who filed the appeal, defended the case through his worker Joseph Dzuya, saying the renovations were within his property and did not constitute an infringement or use of Conte's property or a violation of any laws or regulations.
Justice Njoroge said it was within the CS's right to appeal against the orders requiring him to relocate the toilet.
Stay of execution
“It is apparent that the defendant wishes to challenge the very orders that may have held him to be in contempt. Given those circumstances, it would not be fair to hold him in contempt, especially because the contempt proceedings were initiated long after he had filed the application for stay of execution,” said the judge.
Justice Njoroge dismissed both Conte’s and Mutua's applications.
While dismissing Mutua's application, the judge acknowledged that the case involved issues of daily hygiene and the plaintiff's psychological and physical well-being.
