PME & another v PNE [2019] KECA 973 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a family land dispute, confirming that co-owners cannot sue each other for trespass and that prior court decrees are final.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge misapprehended the nature of the case and the equitable ownership of the suit land
- 2.Whether the trial judge erred in failing to apply the rule in Bull v Bull regarding the rights of co-owners
- 3.Whether the trial judge erred in his treatment of res judicata, including whether he could raise it suo motu
- 4.Whether the respondent's entry into the matrimonial home on 3rd May 1997 constituted trespass
- 5.Whether the appellants proved their claim for special damages for conversion of and trespass to household goods
- 6.Whether the rent paid by the 1st appellant for accommodation at Kentmere Club was recoverable from the respondent
Key legal issues
#Trespass between co-owners of land held in undivided shares
Absent sub-division and demarcation, co-owners in undivided shares cannot sue each other in trespass; an action lies only upon actual ouster or destruction of the subject matter
The Court held that the 1st appellant and the respondent were tenants in common with defined but undivided beneficial interests following the decree in Civil Appeal No. 75 of 2001. Because the land had not been sub-divided as decreed, neither could pinpoint exclusive boundaries, and a trespass claim between co-owners of undivided shares cannot stand unless ouster is shown. The Court adopted the position in Cheshire and Burn's Modern Law of Real Property.
Effect of the decree in Civil Appeal No. 75 of 2001 on the matrimonial home
The decree vested exclusive ownership, use and possession of the farm house, matrimonial home and access thereto in the respondent; there is no co-ownership of the matrimonial home
Although the land had not been sub-divided, the earlier Court of Appeal decree specifically demarcated the respondent's share to include the farm house and matrimonial home with access. Ownership of those structures was therefore vested exclusively in the respondent from 2nd February 2007. Her entry into the matrimonial home, albeit by self-help, was not trespass because the property had already been decreed as hers.
Res judicata raised suo motu
Res judicata is a point of law that may be taken at any time, including by the court on its own motion; the ownership contest over the matrimonial home was res judicata
The appellants complained that no party pleaded res judicata and that the trial judge raised it himself. The Court agreed with the respondent that res judicata is a point of law which can be raised at any time, even suo motu. It found that what was res judicata was the decree awarding the respondent exclusive use, possession and ultimate ownership of the farm house, matrimonial home and access thereto.
Proof of special damages for conversion of and trespass to chattels
The claim failed because neither party proved on a balance of probability which goods belonged to whom
The Court re-assessed the evidence of PW1 and DW1. The respondent testified that she packed and returned the goods she found in the house, and that some goods belonged to her. The list of items alleged to be in the house was disputed and the evidence did not establish ownership of the goods as between the parties. Applying David Bagine v Martin Bundi, special damages must be pleaded and proved; liability for general and special damages and mesne profits was not proved.
Recovery of rent paid for alternative accommodation
Rent paid by the 1st appellant for accommodation at Kentmere Club was not recoverable from the respondent
The respondent was entitled to exclusive use and possession of the farm house and matrimonial home. It was the 1st appellant's own responsibility to move out and secure accommodation for himself, whether by building on his own portion or by renting. His continued occupation of the home decreed exclusively to the respondent was at his own risk; the loss lies where it falls.
Legal principles established
#- Where land is held in undivided co-ownership shares, one co-owner cannot as a general rule maintain trespass against another unless there is an actual ouster or destruction of the subject matter of the tenancy
- A co-owner in sole occupation is not liable to pay occupation rent to another co-owner unless he or she has excluded or ousted the other from possession
- Res judicata is a point of law that may be raised at any time, including suo motu by the court; what is res judicata here is the decree vesting exclusive ownership of the matrimonial home and farm house in the respondent
- Special damages must both be pleaded and strictly proved; it is not enough merely to set out particulars
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear his/her costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Case No. 667 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (appeal from judgment and decree of the High Court)
Relief refused
#Damages for trespass to land and mesne profits
The respondent was decreed exclusive ownership and possession of the matrimonial home and farm house; her entry was not trespass
Special and general damages for conversion of and trespass to household goods
The evidence did not establish which party owned which goods; liability was not proved on a balance of probability
Refund of rent of Ksh. 775,000 paid by the 1st appellant for accommodation at Kentmere Club
It was the 1st appellant's own duty to move out of the matrimonial home decreed to the respondent and secure his own accommodation
Setting aside of the High Court judgment and decree, or remission for retrial
No error was found in the trial court's judgment
Costs
Each party to bear his/her costs in this appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where there are two tenants in common one co-owner cannot, as a general rule maintain an action of trespass against the other, but can do so only if the act complained of amounts to either an actual ouster or to a destruction of the subject matter of the tenancy.
Pursuant to the Decree of this Court in Civil Appeal No. 75 of 2001, we find that there is no co-ownership on the matrimonial home and the farm house.
Whereas we do not condone self-help, we find that the entry by the respondent into the matrimonial home was not trespass.
Special damages in addition to being pleaded must be proved; it is not enough to write down the particulars and so to speak, throw them at the head of the court, saying, this is what I have lost.
The upshot is that we find this appeal has no merit and is hereby dismissed. Each party to bear his/her costs in this appeal.
Issues in the judgment
#Internal inconsistency in the date of the High Court judgment: it is stated as 16th October 2009 in the coram and paragraph 8, but paragraph 6 says 16th October 2019
Inconsistent acreage figures: the decree is stated as 3/4 - 1/4 shares (93 and 25 acres) but the Court variously refers to the respondent's share as 23 acres and the 1st appellant's portion as 98 acres
Inconsistent reference to the date of the Court of Appeal judgment in Civil Appeal No. 75 of 2001, once stated as 2nd February 2001 instead of 2nd February 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PME & another v PNE [2019] KECA 973 (KLR)", Case Analysis (2019). Civil Appeal No. 152 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/973/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.