Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case No. 299 of 2015· [2018] KEELC 1183 (KLR)

Noah Kaisha Kedogo v Chania Construction Company Limited [2018] KEELC 1183 (KLR)

Environment and Land Court
16 October 2018
NMN.A. Matheka
1,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A construction company was ordered to stop excavating on private land in Kakamega and to pay Kshs. 1.5 million in damages for trespass.

What this practically means

#

Executive summary

#
The plaintiff, administrator of the estate of Esau Kedogo Mimo, sued Chania Construction Company Limited claiming that from January 2014 the defendant, without consent, entered land parcel Kakamega/Tigoi/611, excavated murram, destroyed crops, trees and a semi-permanent house, and from October 2015 dumped stones, soil and waste into the resulting crater, rendering the land useless. He sought a permanent injunction, general damages for trespass and costs, and in submissions urged a global award of Kshs. 60 million based on an expert report valuing restitution at Kshs. 48 million, invoking Article 40(2) of the Constitution. The defendant was served but neither attended court nor filed a defence. The court accepted the plaintiff's unchallenged evidence, including the official search and grant of letters of administration, and found trespass proved on a balance of probabilities. On quantum, the court applied comparable trespass authorities, notably Titus Gatitu Njau v Municipal Council of Eldoret, Paul Audi Ochuodho v Joshia Ombura Orwa and Bhagwani Singh Kalsi v National Housing Corporation, and held that because no expert witness testified in support of the alleged restitution figure, Kshs. 1,500,000 was adequate general damages. The court issued a permanent injunction against further dumping and excavation on the parcel, awarded Kshs. 1,500,000 in general damages, and awarded the plaintiff costs of the suit. The claim thus partially succeeded, the injunction and damages being granted but the much larger sum sought in submissions refused.

Key legal issues

#
01

Whether the defendant trespassed on the suit property

Holding

The defendant unlawfully trespassed onto the plaintiff's land from January 2014, excavated murram without consent, destroyed crops, trees and a semi-permanent house, and later dumped waste in the excavated crater

Reasoning

The plaintiff produced an official search showing the parcel belonged to the late Esau Kedogo and a grant of letters of administration. PW2 corroborated his evidence. The defendant was served but neither attended court nor filed a defence, so the unchallenged evidence was accepted and the case proved on a balance of probabilities.

p. 2
02

Quantum of damages for trespass

Holding

General damages of Kshs. 1,500,000 awarded, guided by comparable trespass authorities despite the plaintiff's submission for Kshs. 60 million

Reasoning

The court considered Titus Gatitu Njau v Municipal Council of Eldoret (Kshs. 15,500,000 including exemplary damages), Paul Audi Ochuodho v Joshia Ombura Orwa (Kshs. 500,000) and Bhagwani Singh Kalsi v National Housing Corporation (Kshs. 1,500,000). Since no expert evidence supported the Kshs. 60 million restitution figure, the court found Kshs. 1,500,000 adequate.

p. 2

Legal principles established

#
  • The measure of damages in trespass to land where damage has been occasioned is the amount of diminution in value or cost of reinstatement, the overriding principle being to restore the claimant to the position prior to the harm
  • A plaintiff who proves trespass is entitled to nominal damages even absent proof of actual loss

Court orders

#
  1. 1.A permanent injunction restraining the defendant, its agents, servants and/or employees from dumping stores, soil, waste materials, excavating, digging or mining murrum or any other excavating in property known as Kakamega/Tigoi/611
  2. 2.General damages for trespass to land of Kshs. 1,500,000
  3. 3.Costs of the suit to the plaintiff

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 40(2)

Cases cited (5)

  • Dancan Nderitu Ndegwa vs. Kenya Pipeline Company Ltd
    High Court of Kenya at Nairobi (Milimani Law Courts) Civil Case No. 25577 of 1990
  • Nakuru Industries Ltd vs. S.S. Malita & 4 Sons
    High Court of Kenya at Nakuru Civil Cause No. 36 of 2013
  • Titus Gatitu Njau vs Municipal Council of Eldoret
    (2015) eKLR
  • Paul Audi Ochuodho vs Joshia Ombura Orwa
    (2014) eKLR
  • Bhagwani Singh Kalsi vs National Housing Corporation
    (2017) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Article 162(2)(b) environment and land jurisdiction, as constituted); claim for trespass and injunction over land parcel Kakamega/Tigoi/611

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Noah Kaisha Kedogo v Chania Construction Company Limited [2018] KEELC 1183 (KLR)", Case Analysis (2018). ELC Case No. 299 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1183/eng@2018-10-16

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