Mbuvi v Faustina Holdings Limited & another (Environment & Land Case 398 of 2017) [2024] KEELC 3742 (KLR)
The bottom line
#A Kenyan court ruled that neighbouring excavation which caused soil collapse onto her plot was trespass, awarding the landowner Ksh.3.5 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was the 2nd defendant properly sued herein?
- 2.Whether the Defendants trespassed onto the Plaintiff's parcel of land
- 3.Is the Plaintiff entitled to the reliefs sought?
Key legal issues
#Whether the 2nd Defendant was properly joined to the suit
The issue was not raised in the defence and could not be raised at submissions stage
The court held that parties are bound by their pleadings. Since the challenge to the 2nd Defendant's joinder was absent from the joint statement of defence dated July 20, 2017, it could not be contested for the first time in submissions, so the court declined to consider it.
Whether the Defendants trespassed onto the Plaintiff's parcel
Trespass was established; removal of soil from the Plaintiff's parcel constitutes trespass, and the Defendants' failure to construct a retaining wall before excavation was negligent
Although the Defendants relied on their engineer's evidence that the excavator never entered the Plaintiff's land, the court found that the excavation caused soil from the Plaintiff's plot to cave in, and removal of soil constitutes trespass. The Defendants also lacked statutory approvals at commencement and ignored their engineer's advice on safety measures.
Whether the Plaintiff had locus standi
As registered owner in control of the parcel, she had locus to sue
The court found it undisputed that the Plaintiff owned Nairobi Block 97/325 and was in control of it and the activities thereon at the material time, rejecting the Defendants' submission that she lacked immediate and exclusive possession.
Whether the settlement agreement was vitiated by undue influence/duress
The duress claim failed; the Defendants partially performed the agreement while free and could not unilaterally declare the structures illegal
The court noted that payments of rent for September to December 2016 were made when the 2nd Defendant was a free man, and that the Defendants stopped paying only on the ground that the structures were 'illegal' - a determination they had no legal mandate to make. Partial performance under the negotiated arrangement bound them in equity.
Quantum of damages
A global award of Ksh.3,500,000 was appropriate, applying the reinstatement/diminution principle
Applying Rylands v Fletcher as cited in Kenya Wildlife Service and the measure of damages in Duncan Nderitu Ndegwa, the court held the claimant must be put in the position prior to the harm. Finding 14 of 27 units destroyed and 13 renovated at untabulated cost, it declined the duplicated heads and awarded a lumpsum.
Legal principles established
#- Removal of any part of the soil of another's land constitutes trespass
- A person who brings on his land anything likely to do mischief if it escapes is prima facie answerable for the resulting damage (rule in Rylands v Fletcher)
- Damages for trespass to land are measured by diminution in value or cost of reinstatement, not both
- Parties are bound by their pleadings and cannot raise new issues at submission stage
Court orders
#- 1.Judgment entered for the plaintiff against the defendants jointly and severally for Ksh.3,500,000
- 2.Costs of the suit to the plaintiff
- 3.Interest at court rates running from the date of delivery of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim of trespass to land and damages
Relief refused
#General damages of Ksh.20 million as pleaded
The plaintiff cannot be entitled to general damages as well as mesne profits (loss of rental income) at the same time; the court instead awarded a general lumpsum
Loss of income for 27 units from January 2017 till restitution as separately pleaded
The court awarded a lumpsum in lieu of the specific heads claimed
Costs
Costs of the suit to the plaintiff, with interest at court rates running from the date of delivery of the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Thus judgment is hereby entered for the plaintifi against the defendants jointly and severally for Ksh.3,500,000 plus costs and interests at courts rate. The interests thereof shall run from the date of delivery of the judgment.
This court is persuaded that the Defendants trespassed onto the Plaintifi's parcel. Removal of soil from the Plaintifi's parcel constitutes trespass.
the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril
The general principles as regards the measure of damages to be awarded in cases of trespass to land where damage has been occasioned to the land is the amount of diminution in value or the cost of reinstatement of the land, and not both.
The defendants are however not the entity with the legal mandate to determine the legality of plaintifi's structures.
Issues in the judgment
#Internal inconsistency in the date excavation commenced: DW2's statement says excavation commenced on September 11, 2016 while the rest of the judgment and DW1/DW3 place it on September 3, 2016
Issues list contains an evident typographical error, repeating 'Plaintifi' where 'Defendants' was intended
Case number is not stated anywhere in the judgment as provided; party names of the defendants are only inferable from the testimony
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbuvi v Faustina Holdings Limited & another (Environment & Land Case 398 of 2017) [2024] KEELC 3742 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3742/eng@2024-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.