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ELCPartially AllowedELC Case (Kwale) - plaint dated 22/5/2020· [2024] KEELC 4155 (KLR)

Greenland Realtors Company Ltd v China Civil Engineering Construction Corporation (K) Ltd (Environment & Land Case 143 of 2021) [2024] KEELC 4155 (KLR)

Environment and Land Court
3 May 2024
14,437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~58 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court held a construction company liable for trespass after excavating private land based on unverified verbal permission, awarding damages but rejecting inflated valuations.

What this practically means

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Executive summary

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Greenland Realtors Limited, the registered proprietor of land parcel Kwale/Ng'ombeni/2453, sued China Civil Engineering Construction Corporation alleging that in June 2019 the company trespassed and excavated approximately 40,230 cubic metres of topsoil and subsoil, leaving the land unfit for its intended residential development. It sought a declaration of trespass, damages, mesne profits, Kshs. 80,000,000/= for excavated soil and an Anton Piller order. The Defendant admitted entry but claimed permission from one Ali Mwadarasi, said to be the Plaintiff's agent, for repairs to a public access road. The court found the title unimpeached under sections 24, 25 and 26 of the Land Registration Act, and held that the alleged consent was not proved - no search, written authority or agreement existed - so the entry and excavation were trespass. On quantum, the court applied the Dodd Properties measures: reasonable cost of restoration or diminution in value, whichever is less. It rejected the Kshs. 80 million valuation and the geologist's Kshs. 49 million as unsound, adopted DW3's restoration figure of Kshs. 335,051.25/= and DW2's diminution in value of Kshs. 360,000/=. Mesne profits failed for want of particularization, and the Kshs. 663,400/= special damages claim was largely recharacterized as costs for taxation. General damages of Kshs. 3,000,000/= were awarded for trespass, and judgment entered on 3 May 2024 with costs to the Plaintiff.

Key legal issues

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01

Whether the Defendant trespassed onto the suit property

Holding

Yes - the entry and excavation were without the owner's authority; the alleged consent of Ali Mwadarasi was not proved, no search or written authority was obtained, and the matter was handled casually.

Reasoning

The Plaintiff's registered title under sections 24, 25 and 26 of the Land Registration Act was not impeached. The Defendant admitted entry but relied on permission from one Ali Mwadarasi claiming to be the owner's agent. DW1 conceded no ownership documents were shown, no search was done, no lease signed and no written authority given. Absent proof of consent, entry was unlawful.

p. 15
02

The extent of the excavated area and the measure of damages

Holding

The report of DW3 (cost of murram fill and compaction at Kshs. 335,051.25/=) and DW2's diminution in value of Kshs. 360,000/= were adopted; the Kshs. 80 million and Kshs. 49 million figures were rejected.

Reasoning

PW2 contradicted himself on whether 48% or the entire land was excavated; his Kshs. 80 million figure ignored the backfilling already done, included unproved future development intentions and no change of user was produced. The geologist's Kshs. 49 million figure was undermined by his concession that he was unqualified on land reclamation. DW3 and DW2's assessments were reasonable against agricultural user.

p. 23
03

Whether the Plaintiff was entitled to mesne profits and the pleaded special damages

Holding

Both claims failed - mesne profits were not pleaded or particularized, and the special damages claim confused special damages with litigation costs.

Reasoning

Mesne profits merely appeared in the prayers without amount or rate, and evidence at variance with pleadings goes to no issue. The tabulated Kshs. 663,400/= included report preparation fees not particularized or supported by proof of payment, while court attendance and site visits are witness expenses and costs of conducting the case, to be handled at taxation.

p. 20

Legal principles established

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  • Entry onto registered private land without proof of the owner's consent constitutes trespass; a person's claimed agency must be verified, casually obtained permission does not suffice.
  • The measure of damages for trespass to land causing damage is the reasonable cost of restoration or the diminution in fair market value, whichever is less.
  • Mesne profits are special damages which must be particularized and proved.
  • Trespass to land is actionable per se, without proof of specific damage.

Court orders

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  1. 1.A declaration that the Defendant trespassed upon the suit property and excavated thereof
  2. 2.General damages of Kshs. 3,000,000/=
  3. 3.Cost of land restoration Kshs. 695,051.25/=
  4. 4.The claim for value of top soil and subsoil excavated of Kshs. 80,000,000/= rejected
  5. 5.Interest on general damages and cost of restoration from the date of judgment
  6. 6.The Defendant shall bear the costs of this suit

Authorities

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Legislation

  • Land Registration ActSections 24(a), 25, 26(1), 107
  • Trespass Act Cap 294Section 3(1)
  • Registered Land Act Chapter 300 (repealed)Saving provisions
  • Evidence Act Chapter 80Section 107
  • Civil Procedure Act Cap 21Section 2 (definition of mesne profits)

Cases cited (20)

  • Miaroho/Miaraho Limited v Synohydro Corporation Limited
    [2022]/[2019] eKLR
  • George Awuor Okullo v China Wuyi Company Limited & 2 Others
    [2019] eKLR
  • Dodd Properties (Kent) Limited and another v Canterbury City Council and others
    [1980] 1 All ER 928
  • Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & Anor
    [2013] eKLR
  • Attorney General v Halal Meat Products Limited
    [2016] eKLR
  • Halal Brothers Limited v Roy Rimba & 3 Others
    Mombasa ELC Civil Suit No. 334 of 1996 (Unreported)
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Karanja Mbugua & another v Marybin Holding Co. Ltd
    [2014] eKLR
  • Peter Mwangi Mbuthia & another v Samow Edin Osman
    [2014] eKLR
  • Independent Electoral And Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • Park Towers Ltd v John Mithamo Njika & 7 others
    (2014) eKLR
  • Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited
    [2019] eKLR
  • Hesbon K. Limisi v Delilah Achieng Mathews & 2 others
    [2020] eKLR
  • Keiyian Group Ranch v Samwel Oruta & 9 others
    [2021] eKLR
  • Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited
    [2010] eKLR
  • Nakuru Industries Limited v SS Mehta & Sons
    [2016] eKLR
  • Peter Lavatsa Kabwoya v Nicholas G Karira & another
    [2021] eKLR
  • Nyangeri Obiye Thomas v Yunuke Sakagwa Nyoiza
    ELC Case No. 277 of 2018
  • Adetoun Oladeji (Nig) v Nigeria Breweries PLC
    SC 91/2002
  • Hostler v Green Park Development Co.
    986 S.W 2d 500 (Mo. App. 1999)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over trespass to and damage of land (suit property Kwale/Ng'ombeni/2453)

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, "Greenland Realtors Company Ltd v China Civil Engineering Construction Corporation (K) Ltd (Environment & Land Case 143 of 2021) [2024] KEELC 4155 (KLR)", Case Analysis (2024). ELC Case (Kwale) - plaint dated 22/5/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4155/eng@2024-05-03

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