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ELCDismissedNot stated in judgment (ELC suit, Mombasa)· [2022] KEELC 365 (KLR)

Safaricom Limited v Emfil Limited [2022] KEELC 365 (KLR)

Environment and Land Court
26 April 2022
6,069 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This judgment disposes of the defendant's (Emfil Limited's) amended counterclaim, the plaintiff's (Safaricom's) suit having been dismissed for want of prosecution on 16 May 2019 with an order to remove its telecommunication mast from Kwale/Ramisi/Kinondo SS/150 within 45 days, which was complied with. The defendant counterclaimed for declarations of trespass, general and exemplary damages, mesne profits of Kshs. 54,398,338.04, a declaration of contempt, restoration of the property, and costs. The court held the counterclaim was not res judicata since the 2019 ruling never determined trespass or damages, though prayer (a) on the main suit was spent. On the merits, the court found two competing titles over the same land - the defendant's under the Registration of Titles Act and Jua Maisha Limited's under the Registered Land Act - with ownership yet to be decided in the pending suit Mombasa ELC No. 113 of 2015. Trespass could therefore not be established. The plaintiff was an innocent lessee without notice: it leased from the registered proprietor, the defendant's caveat emptor notices and judgments did not mention the specific title, and no caveat was registered. Even hypothetically, only nominal damages of Kshs. 1/= would have been awarded. Mesne profits failed for want of proof of actual economic loss, and the profits-divided-by-base-stations formula was rejected as unsupported. The contempt, restoration and remaining prayers were also dismissed. The entire counterclaim was dismissed with costs to the plaintiff, the court observing the pursuit of Safaricom was not made in good faith.

Key legal issues

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01

Res judicata vis-à-vis the 16 May 2019 ruling

Holding

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.

Reasoning

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.

p. 3
02

Trespass where two titles compete

Holding

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.

Reasoning

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.

p. 4
03

Innocence of the plaintiff / due diligence

Holding

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.

Reasoning

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.

p. 4
04

Mesne profits and the profits-based formula

Holding

No mesne profits awarded; defendant proved no economic activity or income lost, and the profits-per-base-station formula was unsupported and unsustainable.

Reasoning

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.

p. 5
05

Contempt

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Declaration of trespass refused; no award of general or exemplary damages for trespass
  3. 3.Prayer (c) for mesne profits dismissed
  4. 4.Prayer (d) for Kshs. 54,398,338.04 dismissed
  5. 5.Prayer (e) for a declaration of contempt dismissed
  6. 6.Prayer (f) for restoration of the property dismissed
  7. 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

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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, "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.