Kitamaiyu Limited v China Gansu International Corporation for Economic Technical Corporation Company Limited [2020] KEELC 3124 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit property
The Plaintiff proved lawful ownership through a sale agreement dated 23rd November 1989 and a grant over the suit property, unchallenged by the Defendant.
The Plaintiff produced a sale agreement dated 23rd November 1989 and a grant over the suit property. The Defendant, having not entered appearance or filed a defence, adduced no contrary evidence. The court held that in the absence of evidence to the contrary, the Plaintiff is the lawful owner of the suit property.
Whether the Defendant's entry and carting away of murram amounted to trespass
The unlawful entry without permission and removal of murram amounted to trespass.
Photographs of trucks on the suit property were produced, and with no evidence to controvert the Plaintiff's evidence, the court found the trucks belonged to the Defendant and that wastage and destruction of the property was ongoing. Having held the Defendant had no permission to enter, the court found the entry amounted to trespass entitling the Plaintiff to damages.
Quantum of damages for trespass
Aggravated damages awarded at Kshs.55,042,000/= based on the valuation and accountant's reports.
The Plaintiff called a valuer (PW2) who produced a valuation report of the damage, and an accountant's report placing the damages at Kshs.55,042,000/=. There being no evidence to controvert these figures, the court had no reason to doubt the loss and awarded aggravated damages in the amount stated in the valuation report, applying the principles from Halsbury's Laws of England on computation of damages in trespass.
Standard of proof applicable in an undefended suit
Even in an undefended suit, the Plaintiff must discharge the burden of proof on a balance of probabilities.
Relying on Shaneebal Limited v County Government of Machakos, Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka and Gichinga Kibutha v Caroline Nduku, the court held that uncontroverted evidence is not automatically accepted; the court has an obligation to interrogate it and the plaintiff must still prove fault and loss on a balance of probability.
Legal principles established
#- A plaintiff must prove its case on a balance of probabilities even where the evidence is unchallenged and uncontroverted; ex parte evidence is not automatic proof of a case.
- He who alleges must prove under section 107 of the Evidence Act.
- Trespass is any unjustifiable intrusion by one person upon land in possession, and a plaintiff who proves trespass is entitled to damages.
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendant as prayed in the Plaint in terms of prayers No. (a), (b), (c) and (d)
- 2.An order requiring the Defendant to desist from the trespass and to restore the suit premises to the condition it was in before the trespass commenced (prayer (a))
- 3.A permanent injunction restraining the Defendant, its servants and/or agents from trespassing onto, entering, carting and/or ferrying soil from, demolishing structures on, occupying or in any manner interfering with the suit premises (prayer (b))
- 4.Aggravated damages for unlawful trespass in the sum of Kshs.55,042,000/= (prayer (c))
- 5.Costs of the suit with interest thereon at court rates from the date of filing the suit until payment in full (prayer (d))
- Jurisdiction invoked
- Original civil jurisdiction over the trespass claim (suit proceeded to formal proof after the Defendant failed to enter appearance); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitamaiyu Limited v China Gansu International Corporation for Economic Technical Corporation Company Limited [2020] KEELC 3124 (KLR)", Case Analysis (2020). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3124/eng@2020-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.