Shah (Suing as the Legal Representatives of the Estate of Vinodrai Hirji Shah) v Co-operative Society Limited & another (Environment & Land Case 605 of 2016) [2022] KEELC 2192 (KLR)

The Plaintiffs proved registered ownership of the suit property. The Defendants were permitted to use the rear of the property and demolish the boundary wall on an undertaking to rebuild it upon completion of the project. The project was completed but the property was never restored, and a survey report showed encroachment of 3.92 square metres. The uncontroverted evidence established that beyond the scope of the permission, the Defendants' continued occupation of the land is a trespass, actionable per se.

The 2nd Defendant wrote the letters seeking permission and carried out construction on the 1st Defendant's adjoining property. The court inferred an agency relationship which was not expressly denied or disproved. Even absent agency, the trespass was occasioned by works on the 1st Defendant's property, and the 1st Defendant cannot both rely on the permission granted and disassociate itself from the 2nd Defendant.

While trespass is actionable per se and damages need not be proved, the quantum depends on the facts. The authority relied on by the Plaintiffs involved extensive damage over a large tract of land. Here the encroachment was admittedly minimal (3.92 square metres) and the claim that the trespass affected marketability was unsupported by evidence. The court therefore awarded nominal damages of Kshs 500,000 rather than general damages of Kshs 10,000,000.

Relying on Charterhouse Bank Ltd v Frank N. Kamau, the court held that a defendant's failure to testify does not automatically prove the plaintiff's case; the plaintiff must still prove its claim on a balance of probabilities. The court examined the Plaintiffs' evidence independently and found it sufficient to establish ownership, the scope of the permission granted, the failure to restore the property and the encroachment.