Edward Rashid Makore & another v China Construction Company [2019] KEELC 294 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you can't sue a company for trespass when your own relatives gave it written permission to enter the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent intermeddled in the estate of the deceased
No intermeddling was established against the Respondent; the Appellants failed to prove the property was registered in the deceased's name before his death and failed to sue the siblings who executed the agreement
The title deed was issued on 8th August 2013, over three years after the deceased's death on 1st June 2010, and no other document showed ownership prior to death. The court found the Appellants could not succeed until they proved the permission-granting parties lacked authority, evidence that was lacking. The agreement did not transfer any interest in the property, and the trial court had found the Appellants approached the court with unclean hands, seeking to escape a bad bargain.
Whether the Respondent's entry amounted to trespass
No trespass, since the initial entry was with the permission of the 3rd to 5th Defendants in the counterclaim, who are siblings of the Appellants
Applying the definition of trespass as any unjustifiable intrusion upon land in possession of another, the court found the Respondent's entry was justified by the agreement signed by the deceased's heirs. PW1's evidence suggested a complaint about breach of lease terms (excavation beyond agreed area) rather than trespass, and no claim for breach of the lease was pleaded. The Appellants never brought a claim against the permission-granting parties.
Whether the Appellants were entitled to mesne profits
No mesne profits awardable; the claim was in the nature of special damages and was not proved
The excavation ceased in September 2014 upon service of injunctive orders, so any mesne profits could only run from the demand letter dated 22nd July 2014. No evidence was led on the quantity of soil excavated in that period. The valuation report concerned quantity of soil excavated, not timing, and the vastly inflated claim of Kshs.156,086,545.75 against an estimated Kshs.1,000,000 was not established.
Costs of the original suit and the appeal
The trial magistrate's discretion under Section 27(1) of the Civil Procedure Act to order each party to bear its own costs was not interfered with; the appeal was dismissed with costs to the Respondent
Costs follow the event but remain discretionary under Section 27(1) of the Civil Procedure Act. The trial magistrate was guided by the circumstances of the case, notably that the Appellants did not sue the brothers who initiated the transaction. The appellate court saw no reason to disturb that exercise of discretion and awarded costs of the appeal to the Respondent.
Legal principles established
#- Equity will not ordinarily relieve a party from a bad bargain
- A claim for mesne profits is in the nature of special damages and must be strictly proved
- A claimant alleging intermeddling must first prove that the parties who granted permission had no authority to do so
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the Respondent
- On appeal from
- Resident Magistrate's Court at Taveta
- Civil Suit No. 22 of 2014
- Jurisdiction invoked
- First appeal from the Resident Magistrate's Court at Taveta (Environment and Land Court appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Rashid Makore & another v China Construction Company [2019] KEELC 294 (KLR)", Case Analysis (2019). Civil Appeal No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/294/eng@2019-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.