Selly J. Busienei v Richard K. Busienei & Jackson K. Chebet
The bottom line
#A Kenyan landowner lost her entire claim and was ordered to pay Kshs 16.3 million because she couldn't prove her damages with evidence.
What this practically means
#Executive summary
#Key legal issues
#Effect of the partial judgment of 9/4/2019 on the parties' claims
The partial judgment rendered the consent issues and prayers (a), (b) and (c) of the plaintiff's claim and prayers (b)-(e) of the counterclaim moot/superfluous
Once the parties recorded a consent partial judgment on 9/4/2019, under which the 1st defendant was to refund Kshs 34,340,000 or surrender 50 acres from LR 6459/5, the plaintiff's objectives (voiding the sale) were achieved and the consent issues became moot. Only mesne profits and costs of developments remained for trial.
Whether the plaintiff was entitled to mesne profits and damages
No; the 2nd defendant was not on the land unlawfully and the plaintiff failed to prove her claims
The 2nd defendant entered possession under a sale agreement with the registered owner and the Court of Appeal had set aside the order removing him. The plaintiff's mesne profits figure was unsupported, the charcoal claim was fictitious, and special damages were not strictly proved.
Whether the 2nd defendant was entitled to Kshs 16,300,000 for developments
Yes; proved by an uncontroverted valuation report
The valuer detailed each development, its stage and materials. The court had no reason to doubt the report; the same valuer's land value had been adopted in the consent partial judgment, showing the parties accepted his reliability. No contrary report was tabled.
Legal principles established
#- Special damages must not only be pleaded but also strictly proved
- General damages cannot be claimed in addition to special damages for the same loss
- Mesne profits are in the nature of special damages and must be pleaded and proved
- Expert valuation evidence can only be challenged by another expert; uncontroverted valuation reports should not be wished away
Court orders
#- 1.Plaintiff's suit dismissed with costs to the 2nd defendant
- 2.Judgment entered for the 2nd defendant on his counterclaim in the sum of Kshs 16,300,000 with costs and interest, payable jointly and severally by the plaintiff and 1st defendant
- 3.2nd defendant's claim for mesne profits not granted
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution / ELC Act); not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Selly J. Busienei v Richard K. Busienei & Jackson K. Chebet", Case Analysis (2023). Environment & Land Case 235 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19892/eng@2023-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.