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Court of AppealPartially AllowedCivil Appeal 149 of 2007· [2009] KECA 439 (KLR)

Kenya Hotel Properties Limited v Willesden Investments Limited [2009] KECA 439 (KLR)

Court of Appeal of Kenya
2 April 2009
3,019 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a trespass damages award by more than half, ruling that mesne profits and trespass damages cannot both be awarded for the same land occupation.

What this practically means

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Executive summary

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Willesden Investments Limited, registered proprietor of L.R No. 209/12748, sued Kenya Hotel Properties Limited for trespass, claiming the appellant occupied the plot as parking for 43 vehicles and for storage between January 1994 and February 1998 without consent. Mutungi, J. entered judgment for the respondent awarding mesne profits of Kshs.54,902,400 with interest from January 1994, general damages for trespass of Kshs.10 million, Kshs.6 million for loss of business opportunity, and costs with interest from filing. The appellant appealed on seventeen grounds attacking liability, the quantum and proof of mesne profits, the duplication of the trespass-related awards, and the interest on costs. The Court of Appeal, as a first appellate court, re-evaluated the evidence applying Selle v Associated Motor Boat Company. It affirmed the finding of trespass, holding the respondent's registration on 15th September 1995 set the earliest date from which trespass could be complained of, giving a period of 881 days. Recalculating mesne profits on the evidence (881 x 43 x Kshs.50 x 12 hours), it reduced the award to Kshs.22,729,800 with interest. Relying on Inverugie Investments v Hackett, the court held mesne profits and damages for trespass to land are the same thing, and set aside both the Kshs.10 million trespass award and the Kshs.6 million loss-of-business-opportunity award, the latter unsupported by evidence and conceded by the respondent's counsel. The appeal was partially allowed, with the appellant awarded half the costs of the appeal and half the costs in the superior court.

Key legal issues

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01

Trespass and the period of liability

Holding

Trespass liability runs only from the date the plaintiff was registered as proprietor; the appellant was a trespasser only from 15th September 1995 to February 1998 (881 days)

Reasoning

The respondent claimed trespass from January 1994 but was only registered as proprietor of the suit property on 15th September 1995. A claimant cannot complain of deprivation of use and enjoyment of land before it held title. The court therefore confined the trespass period to 881 days and recalculated mesne profits accordingly.

p. 5
02

Duplication of mesne profits and general damages for trespass

Holding

Mesne profits and damages for trespass to land are one and the same; a separate award of Kshs.10 million for trespass could not stand alongside mesne profits

Reasoning

Relying on Inverugie Investments v Hackett and Stroud's Judicial Dictionary, the court held that mesne profits are simply damages for trespass to land assessed as a reasonable rent. Having made the mesne profits award, the trial judge had no justification for a further award under the head of trespass.

p. 5
03

Damages for loss of business opportunity without evidence

Holding

The award of Kshs.6 million for loss of business opportunity was set aside, consistent with the respondent's own concession

Reasoning

The trial judge had himself found there was no evidence in support of the claim and no submissions from the respondent's counsel, yet made a 'token' award. The appellate court found no evidential basis for the award; respondent's counsel also did not support it, and it was set aside.

p. 5
04

Quantum of mesne profits

Holding

Mesne profits recalculated as 881 days x 43 parking lots x Kshs.50 per hour x 12 hours = Kshs.22,729,800

Reasoning

The evidence of PW1 put the 1997 fee at Kshs.50 per hour (not Kshs.70) and the trial court accepted 43 lots with 12 hours daily parking. The trial judge's assumption of Kshs.70 per lot and continuous occupation was unsupported; the court substituted its own calculation.

p. 5
05

Duty of first appellate court

Holding

A first appeal is by way of retrial; the court re-evaluates evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses

Reasoning

The court adopted the classic statement in Selle v Associated Motor Boat Company, as earlier applied in Williamson Diamonds and Arrow Car, framing its own review of the trial court's findings of fact on trespass and damages.

p. 4

Legal principles established

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  • A party cannot be held liable as a trespasser for a period predating its registration as proprietor of the land
  • Once mesne profits are awarded for trespass to land, no further or separate award of general damages for trespass may be made, as they are the same thing
  • On a first appeal the appellate court must re-evaluate the evidence and draw its own conclusions, with allowance for not having seen or heard the witnesses

Court orders

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  1. 1.Award of Kshs.10,000,000 general damages for trespass set aside
  2. 2.Award of Kshs.6,000,000 damages for loss of business opportunity set aside
  3. 3.Award of mesne profits reduced from Kshs.54,902,400 to Kshs.22,729,800 with interest at court rates from January 1994 to date of full payment
  4. 4.Appellant to have half the costs of the appeal and half the costs in the superior court

Authorities

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Cases cited (5)

  • Selle & Another v. Associated Motor Boat Company Ltd & Another
    [1968] E.A. 123
  • Abdul Hameed Saif v Ali Mohamed Sholan
    (1955) E.A. C.A. 270
  • Williamson Diamonds Ltd v. Brown
    [1970] E.A. 1
  • Arrow Car Limited v. Bimomo & 2 Others
    [2004] 2 KLR 101
  • INVERUGIE INVESTMENTS v. HACKETT (LORD LLOYD)
    [1995] 3 ALL ENG. REP. 842
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 367 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (no specific provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Hotel Properties Limited v Willesden Investments Limited [2009] KECA 439 (KLR)", Case Analysis (2009). Civil Appeal 149 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/439/eng@2009-04-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.