Emfil Limited v Safaricom Limited (Civil Appeal E100 of 2022) [2025] KECA 1331 (KLR)
The bottom line
#The Court of Appeal ruled that Emfil could not claim trespass damages from Safaricom because it never proved it owned or occupied the land.
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 appellant proved the claim for trespass against the respondent so as to warrant an award of mesne profits or damages
- 2.Whether the respondent had notice of the restraining orders of 27th May 2015 in Mombasa ELC No. 113 of 2015 when it entered into the lease agreement with Jua Maisha Limited
- 3.Whether the claim for mesne profits of Kshs.54,398,338.04 was specifically pleaded and strictly proved
- 4.Whether the learned Judge erred in dismissing the counterclaim and awarding costs to the respondent
Key legal issues
#Ingredients of the tort of trespass to land
Trespass requires proof of title or of actual/constructive possession by the claimant; the appellant had neither at the material time.
Relying on Black's Law Dictionary, Winfield & Jolowicz, and M'Ikiara M'Mukanya, the Court held that trespass protects possession, not mere paper title under dispute. Where two competing titles exist and no judicial pronouncement has settled which prevails, and the claimant led no evidence of occupation, the claimant cannot call the other party's entry a trespass. The respondent's entry was on the faith of the register.
Whether mesne profits were pleaded and proved
The claim failed; mesne profits must be specifically pleaded and strictly proved as special damages, which the appellant did not do.
The appellant only sought a declaration without particulars of how the Kshs.54,398,338.04 was computed. The respondent vacated before substantively commencing business, and the appellant did not prove it conducted any economic activity on the land. Following Peter Mwangi Mbuthia and Unifresh Exotics, the claim was unsustainable.
Notice of restraining orders and due diligence
The respondent had no knowledge of the orders when it signed the lease on 26th August 2015; the orders of 27th May 2015 had lapsed for want of service, and no caveat was lodged.
The Court accepted the orders pre-dated the lease but were only brought to the respondent's attention by a letter of 1st October 2015, after the lease was executed. The trial Judge had found the interim orders lapsed within three days for want of service under Order 40 rule 4(3). The appellant was also not vigilant, taking two months to demand vacation. The respondent conducted a search and relied on the register.
First appellate court mandate
As a first appellate court, the Court is duty-bound to re-appraise and re-analyse the evidence and draw its own inferences of fact, while making allowance for not having seen or heard the witnesses.
Citing Selle vs. Associated Motor Boat Co. and Jabane vs. Olenja, the Court restated that an appeal by way of retrial permits interference with factual findings only where they are based on no evidence or on wrong principles. The Court exercised that mandate but reached the same conclusion as the trial Judge.
Legal principles established
#- A claimant in trespass must either hold title to the land or prove actual or constructive possession of it; without one of these, no claim in trespass can succeed.
- Mesne profits are special damages that must be specifically pleaded and strictly proved with particulars showing how the amount claimed was arrived at; a bare prayer for a declaration is insufficient.
- A certificate of title is prima facie evidence that the named proprietor is absolute and indefeasible, and the best evidence of ownership of immovable property is the title deed; absent a caveat or restriction, a third party dealing with the registered proprietor on the strength of an official search cannot be faulted.
Court orders
#- 1.Dismissal of the appeal with costs to the respondent
- 2.Upholding the Judgment of the Environment and Land Court (Munyao, J.) delivered on 26th April 2022
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Case No. 5 of 2016 (Mombasa)
- Jurisdiction invoked
- First appellate jurisdiction under rule 31(1)(a) of the Court of Appeal Rules, 2022
Relief refused
#Declaration that the respondent trespassed, with general and exemplary damages and mesne profits of Kshs.54,398,338.04
The appellant neither produced a title proving ownership of the suit property nor evidence of possession; the respondent entered on the faith of a clean title registered to Jua Maisha Limited and a land registry search, and mesne profits were not specifically pleaded and strictly proved
Declaration that the respondent was in contempt of court orders
The restraining orders of 27th May 2015 lapsed for want of service, and the respondent only learned of them by letter dated 1st October 2015, after the lease was signed
Order that the respondent return the suit property to its former condition
The relief had been spent by dint of the ruling of 16th May 2019, under which the respondent removed the mast and vacated the suit property
Costs of the suit and counterclaim to the appellant
Costs follow the event; the counterclaim was dismissed and the appeal failed
Costs
Appeal dismissed with costs to the respondent; the judgment of the ELC dismissing the counterclaim with costs to the respondent was upheld.
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.
In the end, we reach the inescapable conclusion that the appeal has no merit and is hereby dismissed with costs to the respondent. Consequently, we hereby uphold the Judgement of the Environment and Land Court (Munyao, J.) delivered on 26th April 2022.
to recover anything against an alleged trespasser, or succeed in a claim of trespass, the claimant must fulfil two conditions. Firstly, have a title to the suit property; and secondly, in the absence of such title, be in actual or constructive possession of the land upon which trespasses are alleged to have been committed.
Mesne profits, which are profits earned by a person in wrongful possession of property during a period of unlawful possession, must be specifically pleaded and strictly proved.
As matters stand, and in the absence of a judicial pronouncement on who legally holds the title to the suit property, the appellant cannot claim that the respondent was a trespasser.
the respondent cannot be apportioned any blame for any wrongdoings that the Registrar of Land may have done in the subdivision of the land. It merely entered into a clean business arrangement with Jua Maisha Limited.
Issues in the judgment
#The judgment inconsistently renders the appellant's counsel's surname as both Kimathi (the advocate present) while elsewhere referring to the appellant's position; also PW1's narrative describes the notice letter inconsistently - the Court states 'The appellant's position is that it did not know of the impending court cases and had innocently entered into the lease agreement' when this describes the respondent, not the appellant.
The mesne profits figure appears as Kshs.54,398,338.04 in the counterclaim and evidence but as Kshs.54,398,338.40 when describing the trial court's dismissal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emfil Limited v Safaricom Limited (Civil Appeal E100 of 2022) [2025] KECA 1331 (KLR)", Case Analysis (2025). Civil Appeal (ELC) - Memorandum of Appeal dated 14th October 2022, Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1331/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.