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ELCPartially Allowed· [2019] KEELC 2351 (KLR)

Hannah Nyambura Njoroge & another v Kiambu County Government [2019] KEELC 2351 (KLR)

Environment and Land Court
12 July 2019
LGL. Gacheru
2,965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kiambu family won only Kshs.200,000 from the county because they could not prove their bigger trespass and damages claims with documents and witnesses.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of LR.No.Gatamaiyu/Nyanduma/143 in Kiambu County, sued the County Government of Kiambu alleging trespass committed on 22nd June 2015 when the Defendant reinforced a bridge traversing their land. They sought a declaration that an alleged Temporary Occupation Licence of 27th November 2015 was null and void, a permanent injunction, general damages for trespass, special damages of Kshs.8,045,000/= and costs. The Defendant denied trespass, contending the bridge was constructed in 1967 and merely reinforced for public use, and raised a limitation defence. The Plaintiffs called one witness; the Defendant called none. The court framed four issues: trespass, limitation, entitlement to prayers, and costs. It held that the bridge had existed since 1967/1977 with the Plaintiffs' knowledge and that the Defendant only carried out reinforcement works, so trespass was not established; the Plaintiffs' real grievance was non-payment of compensation, for which no claim was brought. The limitation defence failed because continuing trespass gives rise to a fresh cause of action daily. Most prayers failed for want of proof: no licence was produced, no justification existed for an injunction over the whole parcel, loss of earnings and the valuer's fee were not proved, and special damages required strict proof. The court awarded only Kshs.200,000/= for 200 destroyed tea bushes, with costs on the successful amount and interest from filing. The suit partially succeeded.

Key legal issues

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01

Whether the County Government of Kiambu trespassed on the Plaintiffs' land

Holding

No trespass established; the Defendant only reinforced an existing bridge that had been in use since 1967/1977

Reasoning

The bridge predated the 2015 works and was in open use by residents, with the Plaintiffs' knowledge. The Plaintiffs' real grievance was non-payment of compensation, for which no claim was brought. The court found the reinforcement works were confined to the existing bridge and did not amount to wrongful entry on the land.

p. 3
02

Whether the claim was time-barred under the Limitation of Actions Act

Holding

Not time-barred because trespass is a continuing tort renewed each day

Reasoning

Although PW1 alleged entry from 1977, the acts complained of were of 22nd June 2015 and the suit was filed days later. Citing Gladys Koskey v Benjamin Mutai and Nguruman Limited, the court held that continuance of trespass gives a fresh cause of action daily.

p. 3
03

Whether special damages of Kshs.8,045,000/= were proved

Holding

Only Kshs.200,000/= for 200 destroyed tea bushes awarded; other heads failed for want of strict proof

Reasoning

Special damages require strict proof. There was no proof of 40 trees or their value, the valuer did not testify and no receipt was produced, and no evidence supported monthly earnings of Kshs.50,000/= or the backdated 9-year loss. The valuer's figure of Kshs.1,000/= per tea bush was accepted for 200 bushes.

p. 4

Legal principles established

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  • Every continuance of a trespass is a fresh trespass giving rise to a new cause of action from day to day, so claims in continuing trespass are not time-barred
  • Special damages must be specifically pleaded and strictly proved
  • He who alleges must prove; the burden of proof lies on the party asserting the facts

Court orders

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  1. 1.Prayers (a) and (b) and (d) of the Amended Plaint are dismissed entirely
  2. 2.Judgment entered for the Plaintiffs against the Defendant for Kshs. 200,000/= as Special Damages for loss of 200 tea bushes
  3. 3.Costs on the successful amount only, with interest at Court's rate from the date of filing of the suit until payment in full
  4. 4.Prayer for loss of earnings and Kshs. 45,000/= for the Valuation Report is declined

Authorities

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Legislation

  • Evidence ActSection 107
  • Limitation of Actions ActSection 4

Cases cited (3)

  • Gladys Koskey vs Benjamin Mutai
    [2017] eKLR
  • Nguruman Limited v Shompole Group Ranch & 3 Others
    Civil Appeal No 73 of 2004, reported in 2007 KLR
  • Hahn vs Singh
    Civil Appeal No.42 of 1983 (1985) KLR 716
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim concerning land LR.No.Gatamaiyu/Nyanduma/143 (specific enabling provision not 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, "Hannah Nyambura Njoroge & another v Kiambu County Government [2019] KEELC 2351 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2351/eng@2019-07-12

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