Safaricom Limited v Emfil Limited [2022] KEELC 365 (KLR)
The bottom line
#The Environment and Land Court in Mombasa dismissed Emfil's Kshs. 54 million counterclaim against Safaricom because ownership of the disputed land was unresolved.
What this practically means
#Executive summary
#Key legal issues
#Res judicata vis-à-vis the 16 May 2019 ruling
Counterclaim not res judicata; only dismissal of the main suit and its costs were determined, so prayer (a) is spent but the remaining prayers are open.
The 2019 ruling dismissed the plaintiff's suit for want of prosecution and ordered removal of the mast but made no determination on trespass, mesne profits or damages. Those issues were never substantively addressed, so the court could properly determine them in the counterclaim.
Trespass where two titles compete
No trespass found; the rightful owner between the defendant (RTA title) and Jua Maisha Limited (RLA title) is yet to be decided in Mombasa ELC No. 113 of 2015.
There are two titles over the same land issued under different repealed registration regimes. The prior litigation cited did not pit the defendant's title against Jua Maisha's title, and the ownership dispute remains pending. Without a determination of ownership, trespass cannot be affirmed, and the plaintiff entered under a lease from the registered proprietor shown in the register.
Innocence of the plaintiff / due diligence
The plaintiff was an innocent lessee without notice; the defendant's caveat emptor notices and prior judgments did not mention the specific title and no caveat was registered.
The land registry showed Jua Maisha Limited as registered owner. The defendant's newspaper notices and judgments did not refer to title Kwale/Ramisi/Kinondo SS/150, and no caveat was lodged. A due diligence search would have shown a clean title, so the plaintiff cannot be faulted for entering the lease.
Mesne profits and the profits-based formula
No mesne profits awarded; defendant proved no economic activity or income lost, and the profits-per-base-station formula was unsupported and unsustainable.
Mesne profits compensate actual loss of income from land. The defendant gave no evidence of revenue from its 500 acres and admitted ignorance of the small portion occupied. Dividing Safaricom's national profits by number of base stations had no evidential or legal basis; alternatively the defendant should have sued Jua Maisha Limited to recover the rent paid.
Contempt
Prayer dismissed; contempt must be pursued by a specific application identifying the specific order violated, and the only order directed at the plaintiff was complied with.
No specific court order breached by the plaintiff was identified; the order to remove the mast within 45 days was obeyed. A declaration of contempt cannot be granted as a counterclaim prayer without identifying the violated order.
Legal principles established
#- A party who alleges must prove its case irrespective of whether the opposing party files a defence or calls evidence, including a plaintiff in a counterclaim.
- Trespass cannot be found against a party where competing titles to the land exist and the rightful owner is yet to be determined by a court.
- Mesne profits represent actual economic loss from deprivation of possession, not general damages, and must be proved.
- A party claiming an interest in disputed land who fails to register a caveat cannot fault a purchaser/lessee who relied on the register in good faith.
Court orders
#- 1.Prayer (a) of the amended counterclaim (dismissal of the plaintiff's suit with costs) declared already determined and spent by the ruling of 16 May 2019
- 2.Declaration of trespass refused; no award of general or exemplary damages for trespass
- 3.Prayer (c) for mesne profits dismissed
- 4.Prayer (d) for Kshs. 54,398,338.04 dismissed
- 5.Prayer (e) for a declaration of contempt dismissed
- 6.Prayer (f) for restoration of the property dismissed
- 7.Counterclaim dismissed with costs to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the defendant's counterclaim (Environment and Land Court Act); no specific constitutional/statutory article cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Safaricom Limited v Emfil Limited [2022] KEELC 365 (KLR)", Case Analysis (2022). Not stated in judgment (ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/365/eng@2022-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.