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ELCPartially AllowedNot stated in the judgment as provided· [2018] KEELC 2786 (KLR)

Caroline Wanyua Mwendwa & another v China Road and Bridge Corporation (Kenya) [2018] KEELC 2786 (KLR)

Environment and Land Court
22 June 2018
CMC.G. MBOGO
1,428 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer won Kshs. 10 million and an injunction after proving trespass, but lost bigger claims because they weren't pleaded in court documents.

What this practically means

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Executive summary

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The plaintiffs sued by plaint dated 18th May 2016 seeking permanent injunctions restraining the defendant from trespassing on and harvesting soil from their land in Emali, Makueni County, together with damages for trespass, mesne profits, costs and interest. The defendant filed a statement of defence denying the claim but, though served, did not attend the hearing on 20th December 2017. The plaintiffs gave uncontroverted evidence that they purchased the 10-acre parcel in December 2014 from Samuel Kyama Mutui and Denis Kilonzo Mutui, that the defendant excavated soil leaving a 200-metre pit and a 5 to 6 metre wall, and produced a quantity surveyor's report quantifying restoration at Kshs. 24,503,376 and a demand letter for Kshs. 57,000,000. The court held that although the plaintiffs were not yet registered proprietors, their sale agreement gave them a proprietary interest sufficient to sue. Trespass and excavation were proved on a balance of probabilities and the defence was found to lack merit. However, the projected business plan profits and the restoration sum were special damages not pleaded in the plaint, and parties are bound by their pleadings, so no award was made on those heads. Following Kenya Hotel Investments Ltd v Williesden Investments Ltd and Halsbury's Laws, the court held that mesne profits and damages for trespass are the same thing and cannot both be awarded. Finding actual damage and use of the land, the court awarded Kshs. 10,000,000 as damages for trespass, together with permanent injunctions against trespass and soil harvesting, costs and interest. Judgment was delivered at Makueni on 22nd June 2018.

Key legal issues

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01

Whether trespass was proved despite the defendant's non-attendance

Holding

Trespass and excavation on the plaintiffs' land were proved on a balance of probabilities; the defence lacks merit

Reasoning

The defendant was served with the hearing notice but did not attend. The plaintiffs' uncontroverted evidence, including the sale agreement and quantity surveyor's report, established excavation and removal of soil leaving a pit and wall. The court found the defence a sham and lacked merit.

p. 2
02

Whether unregistered purchasers have standing to sue in trespass

Holding

The plaintiffs, though not yet registered, hold a sale agreement giving them a proprietary interest sufficient to maintain the claim

Reasoning

The plaintiffs bought the land in December 2014 and produced a sale agreement. Although not registered as proprietors, the court held they have a proprietary interest in the suit land sufficient to found the cause of action against the defendant.

p. 2
03

Quantum of damages for trespass

Holding

Unpleaded special damages (projected profits and restoration cost) cannot be awarded; general damages of Kshs. 10,000,000 awarded for actual damage and use of the land

Reasoning

Relying on Halsbury's Laws, where trespass causes actual damage the plaintiff is compensated for the loss, and where the defendant made use of the land damages are what would reasonably be paid for that use. The court fixed Kshs. 10,000,000 as adequate compensation.

p. 2

Legal principles established

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  • A plaintiff who proves trespass is entitled to at least nominal damages even without actual loss
  • A litigant cannot recover both mesne profits and damages for trespass; they are the same thing
  • Special damages not pleaded cannot be awarded; parties are bound by their pleadings

Court orders

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  1. 1.Permanent injunction against the defendant, his servants, agents, employees and all those claiming through or under the defendants restraining them from trespassing on the plaintiffs' land
  2. 2.Permanent injunction against the defendant, his servants, agents, employees and all those claiming through or under the defendants restraining them from harvesting soil from the plaintiffs' land
  3. 3.Kshs. 10,000,000 being damages for trespass
  4. 4.Costs and interest of the suit

Authorities

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Cases cited (2)

  • Kenya Hotel Investments Limited Vs Williesden Investiments Ltd
    [2009] eKLR
  • Inverugie Investments Vs Hackell (Lord Lloyd)
    [1995] 3 ALL ER 842
Jurisdiction invoked
Original civil jurisdiction over a land claim commenced by plaint; no specific provision cited in the judgment

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, "Caroline Wanyua Mwendwa & another v China Road and Bridge Corporation (Kenya) [2018] KEELC 2786 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2786/eng@2018-06-22

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