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Court of AppealDismissedCivil Appeal No. 215 of 2014· [2017] KECA 458 (KLR)

Stanley Munga Githunguri v Kenya National Highways Authority & 2 others [2017] KECA 458 (KLR)

Court of Appeal of Kenya
30 June 2017
PWP. N. WakiRNR. N. NambuyeHOH. M. Okwengu
2,883 words in judgment
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The bottom line

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The Court of Appeal upheld a Sh. 100,000 award for trespass on land before compulsory acquisition, confirming constitutional damages vindicate rights rather than deliver big payouts.

What this practically means

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Executive summary

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Stanley Munga Githunguri appealed against an award of Sh. 100,000 in general damages made by Majanja J. in a constitutional petition finding that the Kenya National Highways Authority and its agent, China Roads and Bridge Construction, had trespassed onto his 9-acre Karen property before compulsory acquisition for the Southern Bypass was commenced or completed, destroying a perimeter fence and cutting trees over 6 acres. He had claimed some Sh. 53 million, including special, punitive and exemplary damages. The land was later lawfully acquired and fully compensated, and the claim covered only the roughly five months before the property vested in the Government in January 2014. Before the Court of Appeal (Waki, Nambuye and Okwengu JJ.A) the appeal was confined to quantum, there being no cross-appeal on liability. The court reaffirmed the Kemfro/Butt v Khan principles: an appellate court may disturb a damages award only where the trial judge took into account an irrelevant factor, omitted a relevant one, or reached an amount so inordinately low or high as to be a wholly erroneous estimate. The trial judge had considered the brief duration of the trespass, the substantial full compensation paid on acquisition, and the respondents' non-aggravating conduct, following his own precedent in Evelyn College of Design. The court also affirmed that constitutional remedies serve primarily to vindicate rights and deter infringement, with damages a secondary remedy, citing Dendy, Fuller and Doucet-Boudreau. Special damages, which must be specifically pleaded and strictly proved, were neither pleaded nor proved, and Kenya Hotel Properties was distinguished. The appeal was dismissed with costs on 30 June 2017.

Key legal issues

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01

Whether the Court of Appeal could interfere with the award of Sh. 100,000 as general damages for breach of the right to property

Holding

The appeal on quantum fails; the trial judge applied correct principles and considered relevant factors, so the award stands.

Reasoning

The court reaffirmed the Kemfro/Butt v Khan principles limiting appellate interference with discretionary assessments of damages. The trial judge considered the barely five-month duration of the trespass, the substantial full compensation paid upon the lawful compulsory acquisition, and the respondents' non-aggravating conduct. He followed precedent (Evelyn College) and did not misdirect himself on any relevant factor. No basis for interference existed.

p. 5
02

Whether the appellant was entitled to punitive, exemplary and special damages for the trespass preceding compulsory acquisition

Holding

No; special damages were neither pleaded nor proved, and exemplary damages were inappropriate because the conduct was not oppressive, arbitrary, malicious or in bad faith.

Reasoning

A claim for special damages must be specifically pleaded and strictly proved (Sande v Kenya Co-operative Creameries). The petition contained no such pleading. The trial court relied on Obongo v Municipal Council of Kisumu for the proposition that exemplary damages require oppressive, arbitrary or unconstitutional state action calculated to procure benefit at the plaintiff's expense, and found no malice, impunity or high-handedness. Kenya Hotel Properties was distinguished: it concerned commercial property, mesne profits specifically pleaded and proved by tested oral evidence.

p. 5
03

The purpose of general damages in constitutional petitions

Holding

General damages in constitutional law serve primarily to vindicate infringed rights and deter future infringements; compensation is secondary.

Reasoning

Drawing on Dendy v University of Witwatersrand (South Africa), Peters v Marksman and Fuller v A-G of Jamaica (Caribbean), and the Supreme Court of Canada's Doucet-Boudreau criteria, the court affirmed that a 'just and appropriate' remedy meaningfully vindicates rights, is legitimate, is a judicial remedy, and is fair to the respondent. An award should neither be a windfall nor nugatory; public policy and the interests of society are relevant.

p. 4

Legal principles established

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  • An appellate court may interfere with the quantum of damages awarded by a trial court only where the trial judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate.
  • The primary purpose of a constitutional remedy is to vindicate guaranteed rights and deter future infringements; compensatory damages are secondary and to be awarded only in the most appropriate cases.
  • A party seeking special damages must specifically plead and strictly prove them; a constitutional petition cannot be used to obtain unpleaded and unproved special damages.

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 40(3)
  • Constitution of KenyaArticle 23
  • Registration of Titles ActSection 23
  • Land Registration ActSection 26(1)
  • Land Actnot specified
  • Land Acquisition Actnot specified

Cases cited (13)

  • Obongo and Another v Municipal Council of Kisumu
    (1971) EA 91
  • Kenya Hotel Properties Limited vs Willesden Investments Limited
    [2009] eKLR
  • Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs A.M. Lubia and Olive Lubia
    [1982 – 88] 1 KAR 727
  • Evelyn College of Design Ltd vs Director of Children's Department & Another
    [2013] eKLR
  • Sande vs Kenya Corporative Creameries Ltd
    [1992] LLR 314 (CAK)
  • Butt vs Khan
    [1978] eKLR
  • Gicheru vs Morton & Another
    [2005] 2 KLR 333
  • Dendy vs University of Witwatersrand, Johannesburg & Others
    [2006] 1 LRC 291
  • Peters vs Marksman & Another
    [2001] 1 LRC
  • Ilango vs. Manyoka
    [1961] E.A. 705
  • Lukenya Ranching and Farming Co-operatives Society Ltd vs. Kavoloto
    [1970] E.A. 414
  • Fuller v A-G of Jamaica
    Civil Appeal 91/1995, (UR)
  • Doucet-Boudreau vs Nova Scotia (Minister of Education)
    2003 SCC 62
On appeal from
High Court of Kenya at Nairobi, Constitutional Division
Petition No. 402 of 2013
Jurisdiction invoked
First appellate jurisdiction over a constitutional petition decided by the High Court (Constitution of Kenya, Article 164; Court of Appeal jurisdiction over appeals from the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Stanley Munga Githunguri v Kenya National Highways Authority & 2 others [2017] KECA 458 (KLR)", Case Analysis (2017). Civil Appeal No. 215 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/458/eng@2017-06-30

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