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ELCPartially AllowedNot stated in the excerpt provided· [2023] KEELC 3 (KLR)

Rosewa Agencies Limited v Ruiru Juja Water & Sewerage Co Ltd & another (Environment & Land Case 251 of 2018) [2023] KEELC 3 (KLR)

Environment and Land Court
12 January 2023
JKJ G Kemei
1,950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won damages for trespass even after the trespass was fixed, but lost big money claims for lack of evidence.

What this practically means

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Executive summary

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The plaintiff, registered owner of LR No 18697/4 in Juja Estate, Thika District (Kiambu County), measuring approximately 43.23 Ha, sued the defendants for trespass after they allegedly entered the land in August 2018 and excavated trenches to lay water pipes and sewer lines. By consent, prayers (a) and (b) of the plaint - permanent injunction and mandatory injunction - were settled on November 10, 2021, leaving only damages for trespass and costs for determination on written submissions. The plaintiff sought rent of Kshs 4,240,000/- for the four months of trespass plus exemplary damages of Kshs 1,060,000/-. The 1st defendant admitted entry but contended it believed a way leave existed, remedied the trespass upon demand, and that no damages were warranted; the 2nd defendant denied entry and claimed it was wrongly sued. Applying section 107 of the Evidence Act and the principle that trespass is actionable per se without proof of specific loss, the court found the trespass ceased only after suit was filed and summons served. The claimed rent and exemplary damages were rejected for want of evidentiary support - exemplary damages require malicious or oppressive conduct. Weighing the roughly four-month duration, the limited area affected, and the backfilling of trenches, the court awarded nominal damages of Kshs 650,000/- payable by the 1st defendant, together with costs of the suit also borne by the 1st defendant. No relief was granted against the 2nd defendant. Judgment delivered at Thika on January 12, 2023 by J G Kemei, Judge.

Key legal issues

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01

Whether trespass was established and persisted at the time of filing suit

Holding

The trespass was established and must have ceased only after the filing of the suit and service of summons

Reasoning

The court considered the 1st defendant's claim that it ceased the trespass upon receipt of the demand letter, supported only by undated photographs. It found it highly probable the plaintiff would not have filed suit on October 17, 2018 had the trespass already stopped, and therefore accepted the plaintiff's timeline.

p. 4
02

Whether damages are payable despite remediation of the trespass

Holding

Damages remain payable; the plaintiff is entitled to damages despite the trespass having been remedied

Reasoning

Relying on the Fleetwood and Park Towers authorities, the court reiterated that trespass is actionable per se without proof of specific loss. Remediation was a factor going to quantum, not to liability. The court weighed the roughly four-month duration of the trespass and the backfilling of trenches in fixing a nominal sum.

p. 4
03

Quantum of damages

Holding

Nominal damages of Kshs 650,000/- awarded against the 1st defendant

Reasoning

The claimed rent of Kshs 4,240,000/- failed for want of documentary evidence of rent earnings or valuation. Exemplary damages of Kshs 1,060,000/- were unsupported because exemplary damages require malicious or oppressive conduct, absent here. Considering the period and nature of the trespass and remediation, Kshs 650,000/- was held adequate.

p. 4

Legal principles established

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  • Trespass is actionable per se; once trespass is proved, the affected party need not prove specific damage or loss to be awarded damages, which are assessed on a case-by-case basis
  • An award of damages for trespass remains available even where the trespass has ceased and been remedied before suit or judgment

Court orders

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  1. 1.Damages for trespass in the sum of Kshs 650,000/- awarded in favour of the plaintiff and payable by the 1st defendant
  2. 2.Costs of the suit awarded to the plaintiff, payable by the 1st defendant

Authorities

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Legislation

  • Evidence ActSection 107(1) and (2)

Cases cited (5)

  • Samco Holdings Ltd t/a Eka Hotel Vs Patrick Nyamweya
    [2022] eKLR
  • Kenya Power & Lighting Co Ltd Vs Fleetwood Enterprises Ltd
    (2017) eKLR
  • Fleetwood Enterprise Ltd vs Kenya Power & Lighting Co Ltd
    [2015] eKLR
  • Park Towers Limited versus John Mithamo Njika & 7 others
    (2014) eKLR
  • Kenya Power & Lighting Company Ltd Vs Ringera & 2 others
    [2022] KECA 104 (KLR)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land within Kiambu County (not expressly invoked in the judgment)

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, "Rosewa Agencies Limited v Ruiru Juja Water & Sewerage Co Ltd & another (Environment & Land Case 251 of 2018) [2023] KEELC 3 (KLR)", Case Analysis (2023). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/3/eng@2023-01-12

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