Kenya Airports Authority v City Council of Nairobi [2021] KEELC 3535 (KLR)
The bottom line
#Kenya's High Court confirmed a landowner can sue repeatedly for ongoing trespass, awarding Kenya Airports Authority Kshs. 1.5 million against the City Council of Nairobi.
What this practically means
#Executive summary
#Key legal issues
#Res judicata in light of the consent order in H.C.C.C. No. 1683 of 1998
The suit is not res judicata because the 2004 trespass was a fresh cause of action arising after the former suit was settled
Although the parties and subject land are the same as in the 1998 suit settled by consent, section 7 of the Civil Procedure Act does not bar a subsequent suit founded on a new cause of action. Following Court of Appeal authority, continuous trespass gives rise to a fresh cause of action each day it persists, and the Plaintiff could not have anticipated the later trespass when the former suit was filed.
Whether the Defendant trespassed on L.R. No. 9042/667
Trespass proved; the Plaintiff's title was unchallenged and the Defendant called no evidence
The Plaintiff proved title under the repealed Registration of Titles Act, whose section 23 made the certificate conclusive evidence of absolute and indefeasible ownership. As registered proprietor it was in constructive possession. The Defendant closed its case without calling witnesses, leaving the Plaintiff's evidence of eviction notices and rent demands unchallenged, so trespass was proved on a balance of probabilities.
Quantum of damages for trespass
General damages of Kshs. 1,000,000/= and exemplary damages of Kshs. 500,000/= awarded
Trespass being actionable per se, general damages were assessable without proof of specific loss, guided by the size and effect of the trespass; only four houses were affected and no destruction was proved. Exemplary damages were warranted because the Defendant, a government entity, persistently and arbitrarily trespassed to collect rent, fitting the Rookes v Barnard category of oppressive or arbitrary action by servants of government.
Legal principles established
#- Each act of continued trespass on land constitutes a fresh cause of action, so a prior suit over the same land does not render a later trespass suit res judicata
- A registered proprietor is in constructive possession of the land and entitled to quiet enjoyment; trespass to land is actionable per se without proof of specific damage
- Averments in pleadings not proved by evidence cannot found a decision; an unchallenged claim stands proved
Court orders
#- 1.A permanent injunction restraining the Defendant, its servants, agents, or any person acting under the Defendant's authority or instruction from interfering with, trespassing upon or in any other manner dealing with L.R. No. 9042/667
- 2.A permanent injunction restraining the Defendant, its servants, agents or any person acting under the Defendant's authority or instruction from demanding rent, evicting or in any other manner dealing with the occupants of houses erected and being on L.R. No. 9042/667
- 3.Award of Kshs. 1,500,000/= comprising Kshs. 1,000,000/= general damages for trespass and Kshs. 500,000/= exemplary damages
- 4.Interest on the damages at court rates from the date of judgment
- 5.Plaintiff awarded the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the plaint dated 12th October 2004; objection under Section 7 of the Civil Procedure Act raised by the Defendant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Airports Authority v City Council of Nairobi [2021] KEELC 3535 (KLR)", Case Analysis (2021). H.C.C.C. No. 128 of 2004 (suit filed by plaint dated 12th October 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3535/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.