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ELCPartially AllowedELC Case No. 812 of 2012· [2022] KEELC 1601 (KLR)

Mimosa Investments Limited v Tom Onyango [2022] KEELC 1601 (KLR)

Environment and Land Court
10 February 2022
LKL. Komingoi
2,004 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Mimosa Investments Limited, sued the Defendant, Tom Onyango, seeking vacant possession, mesne profits, rent, and general damages for trespass and nuisance over land known as L.R No.1870/V/63, of which it is the registered proprietor. The Plaintiff pleaded that it had granted a revocable licence to the late Ashok Sood to occupy the dwelling house on the land, and that the Defendant, who had occupied the servants' quarters as the deceased's employee, refused to vacate after the deceased's death on 14th September 2011. In a ruling delivered on 20th September 2013, J. Mutungi granted a mandatory injunction compelling the Defendant to remove illegal structures and vacate, with police assistance; that ruling was upheld by the Court of Appeal in Civil Appeal No.30 of 2014. Before trial, the Plaintiff abandoned the prayers for mesne profits and rent, pursuing only damages for trespass plus costs. The Defendant, though served, did not adduce evidence or file submissions. The court framed three issues: entitlement to damages for trespass, quantum, and costs. Relying on the earlier finding of trespass and the principle that trespass is actionable per se, the court held the Plaintiff entitled to damages. Guided by the Park Towers and Aluchio authorities, and considering the Plaintiff's suggested figure of Kshs.1,500,000, the court assessed general damages at Kshs.1,000,000 with interest from judgment, and awarded the Plaintiff costs of the suit. Judgment was delivered by L. Komingoi J on 10th February 2022.

Key legal issues

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01

Whether the Plaintiff is entitled to damages for trespass

Holding

The Plaintiff, as registered proprietor, is entitled to damages for trespass; the Defendant had already been found a trespasser in the ruling of 20th September 2013

Reasoning

The court noted that it had in its ruling of 20 September 2013 summarily found the Defendant to be a trespasser on the suit property, and that this finding was upheld on appeal. The Plaintiff was the registered proprietor and had allowed the deceased Ashok Sood, not the Defendant, to occupy the property. Trespass being actionable per se, entitlement to general damages followed without proof of specific loss.

p. 3
02

Quantum of damages for trespass

Holding

General damages for trespass assessed at Kshs.1,000,000/-, an amount the court considered reasonable in the circumstances

Reasoning

The Plaintiff had suggested Kshs.1,500,000/- relying on Nakuru Industries and Rhoda S Kiilu authorities. The court, having considered the circumstances of the case and the principle that damages are assessed according to the unique circumstances of each case, awarded Kshs.1,000,000/- with interest from the date of judgment until payment in full.

p. 3

Legal principles established

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  • Where trespass is proved, a party need not prove specific damage or loss to be awarded general damages
  • The measure of damages for trespass is the difference in the value of the plaintiff's property immediately after the trespass or the cost of restoration, whichever is less

Court orders

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  1. 1.General damages for trespass of Kshs.1,000,000/- plus interest from the date of judgment until payment in full
  2. 2.Plaintiff awarded costs of the suit

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (5)

  • Nakuru Industries Limited v SS Mehta & Sons
    [2016] eKLR
  • Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited
    [2019] eKLR
  • Philip Aluchio v Chrispinus Ngayo
    [2014] eKLR
  • Park Towers Ltd v John Muthamo Njika & 7 Others
    [2014] eKLR
  • Hostler vs Green Park Development Co
    986 S.W. 2d 500 (No App. 1999)
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)

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, "Mimosa Investments Limited v Tom Onyango [2022] KEELC 1601 (KLR)", Case Analysis (2022). ELC Case No. 812 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1601/eng@2022-02-10

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