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ELCPartially AllowedNot stated in judgment (Nairobi High Court Civil Suit; plaint dated 16th November 2009, filed 18th November 2009)· [2016] KEELC 1113 (KLR)

Lucy Irungu v Albert Alexander Aggrey Ekirapa & another [2016] KEELC 1113 (KLR)

High Court of Kenya (Environment and Land Division)
29 January 2016
SOS. Okong'o
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi property owner won Kshs.2.4 million after her building was demolished, but only because she proved each loss with actual evidence.

What this practically means

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Executive summary

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The plaintiff, registered owner of L.R No. 209/6014 on Nyeri Road, Kileleshwa, Nairobi, sued the defendants for trespass arising from the demolition of part of her developments on the suit property on 1st October 2009. She pleaded that the 1st defendant had filed a prior injunction suit against her over the adjacent Plot No. 209/9674, that the 2nd defendant issued an enforcement notice under the Physical Planning Act Cap 286 which she appealed against, and that while both matters were pending the defendants jointly demolished part of her building using the 2nd defendant's bulldozers and guards. She sought loss of use, mesne profits, Kshs.1,954,000/= special damages for restoration, general damages, punitive damages, costs and interest. The defendants did not enter appearance; interlocutory judgment in default was entered against both, and the suit proceeded to formal proof on 16th April 2015 before the judge, the plaintiff testifying alone and producing an uncontested bill of quantities from her contractor. The court held that liability for trespass was settled by the interlocutory judgment and formal proof was confined to proving quantum. It awarded mesne profits of Kshs.350,000/= (5 months at Kshs.70,000/=, not the 7 months claimed), special damages of Kshs.1,954,000/= strictly proved, and exemplary damages of Kshs.100,000/= against the 2nd defendant alone for arbitrary and oppressive action, tempered by the absence of malice. General damages were refused for want of proof of loss beyond restoration costs and loss of use. Judgment was entered with costs and interest to the plaintiff, delivered at Nairobi on 29th January 2016.

Key legal issues

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01

Mesne profits/loss of use

Holding

Awarded Kshs.350,000/= representing 5 months' lost rental income at Kshs.70,000/= per month, adopting the Court of Appeal's approach in Kenya Hotel Properties Ltd v Willesden Investments Ltd

Reasoning

The plaintiff claimed 7 months' lost rent but her own evidence showed 4 months of repairs plus 1 month to secure a tenant, totalling 5 months. The court agreed with the Court of Appeal's approach to assessing mesne profits and adjusted the award to match the evidence rather than the submissions.

p. 3
02

Special damages of Kshs.1,954,000/= for restoration

Holding

Proved and awarded; the bill of quantities prepared by the contractor was produced and uncontested, and payment was testified to

Reasoning

The plaintiff pleaded and strictly proved the special damages through an unchallenged bill of quantities prepared by Obenga Construction Company Ltd and her uncontroverted testimony that she paid the contractor the claimed sum for the repair works.

p. 3
03

General damages

Holding

Refused; no evidence of loss beyond loss of use and restoration costs

Reasoning

General damages are compensatory but unquantified heads require proof. The onus was on the plaintiff to establish additional loss over and above loss of use and direct restoration costs; no such evidence was tendered, so there was no basis to assess general damages.

p. 3
04

Punitive/exemplary damages against the 2nd defendant

Holding

Awarded Kshs.100,000/= against the 2nd defendant only, for arbitrary and oppressive action in issuing and executing the enforcement notice, but mitigated by absence of malice

Reasoning

The court applied the Rookes v Barnard criteria as adopted in Obongo v Municipal Council of Kisumu. The 2nd defendant acted arbitrarily and oppressively, satisfying the first category, but may have wrongly believed it acted within the Physical Planning Act; hence a modest award rather than a heavy penalty.

p. 3
05

Effect of interlocutory judgment in default of appearance

Holding

Liability for trespass was settled by the interlocutory judgment; formal proof was confined to proving the reliefs claimed

Reasoning

The defendants failed to enter appearance and interlocutory judgment was entered against both. The formal proof hearing therefore served only to establish quantum, the court noting that the liability issue had been laid to rest upon entry of the interlocutory judgment.

p. 2

Legal principles established

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  • Special damages must not only be pleaded but must also be strictly proved
  • Upon entry of interlocutory judgment in default of appearance, liability is established and formal proof is only to prove quantum/reliefs claimed
  • Exemplary damages in tort may be awarded where there is oppressive, arbitrary or unconstitutional action by servants of government, or where the defendant's conduct was calculated to procure him benefit at the plaintiff's expense

Court orders

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  1. 1.Judgment for the plaintiff against the defendants jointly and severally: Kshs.350,000/= as mesne profit
  2. 2.Judgment for the plaintiff against the defendants jointly and severally: Kshs.1,954,000/= as special damages
  3. 3.Costs of the suit to the plaintiff
  4. 4.Kshs.100,000/= exemplary/punitive damages against the 2nd defendant only
  5. 5.Interest on the mesne profits and special damages at court rate from the date of filing suit, and on the exemplary damages at court rate from the date of judgment, until payment in full

Authorities

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Legislation

  • Physical Planning ActCap 286 Laws of Kenya

Cases cited (3)

  • Kenya Hotel properties Ltd Vs. Willesden Investments Limited
    (2009) eKLR
  • Obongo & Another Vs. Municipal Council of Kisumu
    (1971) E.A 91 (CAN)
  • Rookes Vs. Barnard and others
    (1964) A. C. 1129
Jurisdiction invoked
Original civil jurisdiction of the High Court in a claim for trespass and damages (plaint dated 16th November 2009)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lucy Irungu v Albert Alexander Aggrey Ekirapa & another [2016] KEELC 1113 (KLR)", Case Analysis (2016). Not stated in judgment (Nairobi High Court Civil Suit; plaint dated 16th November 2009, filed 18th November 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1113/eng@2016-01-29

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