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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 3621 (KLR)

John Chumia Nganga v Attorney General & another [2019] KEELC 3621 (KLR)

Environment and Land Court
26 April 2019
LGL. GACHERU
3,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan university that fenced 10 metres of a private Thika plot was ordered to remove it and pay over Kshs.1 million in damages and costs.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of LR No.21096/115 (I.R No.75511/1), Thika, sued Jomo Kenyatta University of Agriculture and Technology, alleging that from around March 2008 the University entered his plot and fenced off 10 metres, purporting it to be part of the 35-metre public access road to its campus. He sought declarations of trespass, private nuisance and conversion, mandatory and permanent injunctions, general and exemplary damages, special damages of Kshs.35,000/= and mesne profits. The Defendant denied the claims, contending any encroachment was on the public road and that the Plaintiff lacked locus. At the hearing the Plaintiff testified and called the District Surveyor, who produced a 2009 report confirming the fence, trees and hedge stood 10 metres inside the Plaintiff's property. The Defendant, though served, adduced no evidence, leaving the Plaintiff's case uncontroverted. The court found the disputed portion belonged to the Plaintiff and that the Defendant was a trespasser and caused nuisance; damages in conversion were also awarded. General damages for trespass were assessed nominally at Kshs.500,000/= as no valuation evidence was led; nuisance attracted Kshs.100,000/=; exemplary damages of Kshs.100,000/= each were granted for trespass and nuisance as the Defendant is a public institution. Judgment was entered in terms of prayers (a), (b) and (c), with damages and special damages of Kshs.37,000/= under prayer (d); mesne profits were refused as duplicative of trespass damages. The Plaintiff, as successful litigant, was awarded costs and interest from filing to judgment.

Key legal issues

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01

Ownership of the disputed portion and whether the Defendant encroached

Holding

The disputed portion belongs to the Plaintiff; the Defendant encroached by fencing 10 metres inside the Plaintiff's plot

Reasoning

The Defendant filed a defence but adduced no evidence, so its averments remained mere allegations and the Plaintiff's evidence stood uncontroverted. PW2, the District Surveyor, produced a surveyor's report confirming the fence, trees, hedge and barbed wire stood 10 metres inside the Plaintiff's property, proving the encroachment.

p. 2
02

Trespass

Holding

The Defendant was a trespasser, having entered the Plaintiff's land without lawful or justifiable cause while the Plaintiff was in possession

Reasoning

Applying the definition of trespass as any unjustifiable intrusion upon land in possession, the court was satisfied the Plaintiff was the registered proprietor and the Defendant fenced off a 10-metre portion, annexing it without cause.

p. 3
03

Nuisance

Holding

The Defendant's acts constituted private nuisance by interfering with the Plaintiff's use and occupation of the land

Reasoning

Relying on the definition of nuisance as an act or omission interfering with rights enjoyed in connection with land, the court found the Defendant prevented the Plaintiff from clearing and using his land, thereby causing nuisance.

p. 3
04

Conversion

Holding

The Plaintiff was entitled to damages for conversion, compensatory in nature

Reasoning

The court adopted the definition of conversion as appropriating another's property to one's benefit and the Halsbury measure of damages in conversion, being compensatory, neither a penalty nor a windfall, with proof of actual loss required in general.

p. 3
05

Assessment of damages

Holding

General damages for trespass of Kshs.500,000/=, general damages for nuisance of Kshs.100,000/=, exemplary damages of Kshs.100,000/= each for trespass and nuisance, Kshs.100,000/= for conversion, and special damages of Kshs.35,000/= (awarded as Kshs.37,000/= in the final orders)

Reasoning

The Plaintiff gave no evidence of the value of the land before and after the trespass, so general damages for trespass were nominal. Nuisance required proof of some damage, which was present but unquantified. Exemplary damages lay because the Defendant is a public institution. Special damages were pleaded and proved by receipts.

p. 4

Legal principles established

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  • Where trespass is proved, a party need not prove specific damage or loss to be awarded damages
  • Averments in pleadings are not evidence; a defence unsupported by evidence leaves the plaintiff's evidence uncontroverted
  • Where a party claims both mesne profits and damages for trespass, the court can only grant one
  • Special damages must be specifically pleaded and proved
  • Exemplary damages are awardable in cases of oppressive, arbitrary or unconstitutional action by servants of government, or where the defendant's conduct was calculated to profit him beyond the compensation payable

Court orders

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  1. 1.Judgment for the Plaintiff against the Defendant in terms of prayer No.(a) - declaration of unlawful encroachment, trespass, private nuisance and/or conversion
  2. 2.Judgment in terms of prayer No.(b) - mandatory injunction to compel the Defendant to pull down, uproot or otherwise remove the fencing barrier and cede vacant possession of the encroached portion
  3. 3.Judgment in terms of prayer No.(c) - permanent injunction restraining the Defendant, its agents/servants/employees/students from trespassing onto or converting the Plaintiff's property
  4. 4.General and Exemplary Damages for trespass, conversion of property and nuisance totalling Kshs.1,000,000/= (general damages for trespass Kshs.500,000/=; general damages for nuisance Kshs.100,000/=; exemplary damages Kshs.100,000/= for trespass and Kshs.100,000/= for nuisance; Kshs.100,000/= for conversion)
  5. 5.Special Damages of Kshs.37,000/=
  6. 6.No award on prayer (e) (mesne profits)
  7. 7.Costs of the suit to the Plaintiff with interest thereon from the date of filing the suit to the date of judgment

Authorities

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Legislation

  • Evidence ActSections 107 and 108

Cases cited (7)

  • Park Towers Ltd Vs John Mithamo Njika et al
    (2014) eKLR
  • Shaneebal Limited Vs County Government of Machakos
    (2018) eKLR
  • Janet Kaphiphe Ouma & Ano Vs Marie Stopes International (Kenya)
    Kisumu HCC No.68 of 2007
  • Nakuru Industries Limited Vs S.S Menta & Sons
    (2016) eKLR
  • Peter Ndungu Vs Ann Waithera Ndungu & 2 Others
  • Philip Aluchio Vs Crispinus Ngayo
    [2014] eKLR
  • Maina Kabuchwa Vs Gachuma Gacheru
    (2018) eKLR
Jurisdiction invoked
Original civil jurisdiction over a claim for trespass, nuisance and conversion relating to land (Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "John Chumia Nganga v Attorney General & another [2019] KEELC 3621 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3621/eng@2019-04-26

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