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ELCAllowedELC Suit (Mombasa), Plaint dated 26th January 2017 (amended 10th April 2017)· [2018] KEELC 4587 (KLR)

Andrew Mugandi Nuri & 2 others v China Dalian International Group [2018] KEELC 4587 (KLR)

Environment and Land Court
5 February 2018
CYC. Yano
1,343 words in judgment
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The bottom line

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Kenya's Environment and Land Court awarded landowners Kshs.4.55 million against China Road & Bridge Corporation for excavating murram from their land without consent.

What this practically means

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Executive summary

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The Plaintiffs sued the Defendant, a contractor engaged in the construction of the Mombasa-Nairobi Highway, claiming it trespassed onto their land, L.R. Number Unsurveyed Plot Deri/Mwangoloto in Kinango District, in January 2017, excavating soil and rocks and removing murram without consent. They sought a permanent injunction, special damages of Kshs.4,500,000, general damages for environmental degradation, and costs. The Defendant entered appearance through M/s M J Nyambura & Associates but never filed a defence; interlocutory judgment was entered and the suit proceeded to formal proof on 19th October 2017 in the Defendant's absence. PW1, the 1st Plaintiff, testified that the Defendant's machinery excavated the land without permission; a valuer's report showed approximately 13 acres affected and about 4,800 metric tonnes of murram removed, valued at Kshs.4,500,000, supported by photographs. The court, per C. Yano J, held that even an undefended suit must be formally proved on a balance of probability, and found trespass established on the uncontroverted evidence. Applying the principle that damages for trespass causing damage are computed on restitution of the land, the court found the pleaded and specifically proved special damages of Kshs.4,500,000 established. For general damages, it followed two comparable authorities each awarding Kshs.50,000, and awarded that nominal sum, the before-and-after value of the land not having been proved. Judgment was entered for the Plaintiffs with a permanent injunction, special damages of Kshs.4,500,000, general damages of Kshs.50,000, costs of the suit, and interest at court rates from the date of judgment until payment in full, delivered at Mombasa on 5th February 2018.

Key legal issues

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01

Trespass to land

Holding

The Defendant's unauthorised entry onto the Plaintiffs' land and excavation/removal of murram amounted to trespass

Reasoning

PW1 testified that the Defendant's machinery excavated soil and removed murram without consent. Photographic evidence and an uncontroverted valuer's report showed approximately 13 acres affected. As the Defendant filed no defence and adduced no evidence, the Plaintiffs' unrebuted evidence proved entry without consent on a balance of probability.

p. 2
02

Special damages

Holding

Special damages of Kshs.4,500,000.00 for soil removed was pleaded and specifically proved by the valuer's report

Reasoning

The valuer's report (exhibit 3) established that about 13 acres were excavated and approximately 4,800 metric tonnes of murram removed, valued at Kshs.4,500,000.00. The claim was pleaded in the Plaint and supported by evidence, satisfying the requirement of specific proof.

p. 2
03

General damages for trespass

Holding

General damages awarded at a nominal sum of Kshs.50,000.00 following comparable authorities

Reasoning

Although the exact value of the land before and after the trespass was not presented, trespass was established and the Plaintiffs were entitled to a reasonable sum. The court followed Anthony Kolani Mwanya v Mwaka Omar Ali and James Njeru v Ericson Kenya Limited, each awarding Kshs.50,000.00.

p. 3

Legal principles established

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  • Even in an undefended suit, the plaintiff must formally prove the case on a balance of probability
  • Removal of soil from land constitutes trespass, and damages for trespass causing damage are computed on the basis of restitution of the land
  • A claim for special damages must be pleaded and specifically proved

Court orders

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  1. 1.A permanent injunction restraining the Defendant, its employees, servants and agents from trespassing into or entering onto or committing acts of waste, alienating and/or interfering with the Plaintiffs' quiet and peaceful occupation of L.R. NUMBER UNSURVEYED PLOT DERI/MWANGOLOTO in Kinango District
  2. 2.Special damages of Kshs.4,500,000.00
  3. 3.General damages for trespass at a nominal sum of Kshs.50,000.00
  4. 4.Costs of the Suit
  5. 5.Interest at Court rates from the date of judgment until payment in full

Authorities

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Cases cited (2)

  • Anthony Kolani Mwanya v Mwaka Omar Ali
    (2011) eKLR
  • James Njeru v Ericson Kenya Limited
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction over land/trespass claims (Environment and Land Court)

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, "Andrew Mugandi Nuri & 2 others v China Dalian International Group [2018] KEELC 4587 (KLR)", Case Analysis (2018). ELC Suit (Mombasa), Plaint dated 26th January 2017 (amended 10th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4587/eng@2018-02-05

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