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ELCPartially AllowedE.L.C. Case No. 345 of 2015· [2020] KEELC 2093 (KLR)

Elias Muchangi Njeru & 2 others v George Nthiga Nyaga & another [2020] KEELC 2093 (KLR)

Environment and Land Court
14 May 2020
YAY.M. Angima
1,487 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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Landowners who reclaimed their plot won the case and costs, but lost their compensation claim because they never properly pleaded or proved their financial losses.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of Title No. Gaturi/Weru/5890, sued the Defendants, owners of the adjacent parcel Gaturi/Weru/5889, seeking permanent injunctions, eviction, mesne profits from 2010, and costs, alleging trespass and wrongful occupation of parcel 5890. The Defendants admitted the respective proprietorships but denied trespass, claiming they had developed the portion shown to them by the previous owner who sub-divided and sold the parcels. At the hearing on 18th December 2019 the parties recorded a consent that the Defendants would vacate parcel 5890 within 15 days, leaving mesne profits and costs for the court's determination upon written submissions. On mesne profits, the court applied authority defining mesne profits as damages for wrongful occupation and held that such a claim constitutes special damages requiring particularised pleading and strict proof. Finding no particulars pleaded, no supporting evidence in the witness statements or documents, no expert report substantiating the claimed annual horticulture income of Kshs. 700,000, and an inadmissible spreadsheet introduced only at submissions stage, the court declined the mesne profits claim. On costs, applying the proviso to Section 27 of the Civil Procedure Act and the rule that costs follow the event, the court awarded the Plaintiffs the costs of the suit as successful litigants who had recovered the parcel. Judgment was delivered in chambers at Embu on 14th May 2020 due to the Covid-19 situation and transmitted to the parties by email.

Key legal issues

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01

Whether mesne profits were payable and proved

Holding

The claim failed for lack of pleading particularity and strict proof; the spreadsheet produced at submissions stage was inadmissible

Reasoning

The court distinguished general damages for trespass from mesne profits, treating the latter as special damages requiring particularised pleading and strict proof. The plaint contained no particulars of mesne profits, no witness statement or document particularised the alleged Kshs. 700,000 annual horticulture income, and there was no expert report. A spreadsheet introduced at submissions stage was inadmissible in evidence, so the claim could not succeed.

p. 2
02

Who should bear the costs of the suit

Holding

Costs awarded to the Plaintiffs as successful litigants, following the general rule

Reasoning

Relying on Section 27 of the Civil Procedure Act and Hussein Janmohamed & Sons, the court held that costs follow the event and a successful party should normally be awarded costs unless there is good reason to depart. Since the Plaintiffs succeeded in their main claim for recovery of parcel 5890 (per the consent that Defendants vacate), no good reason existed to deny them costs.

p. 3

Legal principles established

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  • Mesne profits are damages for loss suffered during a wrongful period of occupation of property
  • A claim for mesne profits is a claim for special damages which must be specially pleaded and strictly proved
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court directs otherwise for good reason

Court orders

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  1. 1.The Plaintiffs' claim for mesne profits with respect to Title No. Gaturi/Weru/5890 is hereby declined
  2. 2.The Plaintiffs are hereby awarded costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 27 (proviso)

Cases cited (7)

  • Attorney General V Halal Meat Products Ltd
    Civil Appeal No. 114 of 2009 [2016] eKLR
  • Kenya Hotel Properties Ltd V Willesden Investments Ltd
    [2009] eKLR
  • Vincent Koskei V Bernard Koskei
    [2018] eKLR
  • Ouma V Nairobi City Council
    [1976-80] 1KLR 375
  • Stroms Bruks Aktie Bolag V John & Peter Hutchison
    [1905] AC 515
  • Ratcliffe V Evans
    (1892) 2 QB 524
  • Hussein Janmohamed & Sons V Twentsche Overseas Trading Co. Ltd
    [1967] E A 287
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title/occupation of land

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, "Elias Muchangi Njeru & 2 others v George Nthiga Nyaga & another [2020] KEELC 2093 (KLR)", Case Analysis (2020). E.L.C. Case No. 345 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2093/eng@2020-05-14

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