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ELCDismissedNyahururu ELC Appeal (against Nyahururu CM ELC No. 60 of 2018)· [2024] KEELC 6505 (KLR)

Giathi v Mwirikia (Environment and Land Appeal 28 of 2023) [2024] KEELC 6505 (KLR)

Environment and Land Court
3 October 2024
3,748 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that you can sue for demolished property without a police report, and appeals need expert boundary evidence.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nyahururu against the judgment of Hon. A.P. Ndege (PM) in Nyahururu CM ELC No. 60 of 2018, in which the trial court found that the Appellant had unlawfully demolished the Respondent's four rooms in February 2011 and awarded Kshs.425,900/= as value of demolished houses, Kshs.10,000/= per month from February 2011 for loss of use and income, and one half of the costs. The Appellant raised 14 grounds, which the court consolidated into four issues: proof of the claim, proof of special damages, the award of interest, and costs. Applying the settled principles governing first appeals (Selle, Peters, Watt, and Kapsiran Clan), the court re-evaluated the evidence and found no fault with the trial court. It held that the Appellant had failed to produce credible expert evidence that the structures encroached on a road reserve or his land, that the Respondent's ownership was admitted in the defence and could not be challenged on appeal, that a plaintiff need not call every possible witness or report the tort to the police before suing, and that special damages were properly particularized and supported by an unrebutted valuation report. On interest, the court found no error of principle and held that delay in delivering judgment cannot disentitle a successful litigant to interest. The appeal was dismissed in its entirety with costs to the Respondent.

Key legal issues

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01

Whether the Respondent proved his claim for the unlawful demolition to the required standard

Holding

Yes. The Appellant failed to adduce credible expert evidence that the structures encroached on a road reserve or his land; the ownership plea was not denied at trial and could not be raised on appeal.

Reasoning

The court re-evaluated the evidence and held the only escape from liability was proving the structures were on a road reserve or the Appellant's land. No credible expert evidence supported that. Ownership was admitted in the defence ('paragraph 3 of the plaint is not denied'), so challenging it on appeal lacked merit and good faith.

p. 6
02

Whether the claim for special damages was pleaded and proved

Holding

Yes. Special damages were particularized in the plaint and supported by a valuation report which the Appellant did not rebut; the trial court was entitled to award the lower pleaded figure.

Reasoning

The claim of Kshs.425,900/= was particularized in the plaint, and loss of income pleaded in paragraph 8. The valuation report by M/S Mbugua & Associates assessed the demolished rooms at Kshs.415,900/= but the Respondent claimed the lower pleaded figure of Kshs.386,000/=. No rebuttal valuation was produced by the Appellant.

p. 7
03

Whether the award of interest on the decretal amount was erroneous given delay in delivery of judgment

Holding

No. Under Section 26 of the Civil Procedure Act the court has discretion to award interest; no error of principle or arbitrariness was shown, and delay per se does not defeat interest.

Reasoning

The Appellant argued the delay in judgment (over 4 years) was caused by the court itself. The court found no error of principle in the award of interest, noted the usual rate is court rates unless a higher rate is pleaded and justified, and held delay alone cannot disentitle a successful litigant to interest.

p. 7
04

Costs of the appeal

Holding

Costs follow the event under the proviso to Section 27 of the Civil Procedure Act; the Respondent is awarded costs of the appeal.

Reasoning

The general rule is that costs follow the event unless the court, for good reason, directs otherwise, per Hussein Janmohamed & Sons -vs- Twentsche Overseas Trading Co. Ltd. The court found no good reason to depart from that rule.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate the entire evidence and draw its own conclusions while making due allowance for the trial court's advantage of seeing and hearing the witnesses.
  • A plaintiff need not call all possible witnesses; he is free to prove his case on a balance of probabilities with the witnesses he chooses.
  • There is no legal obligation to report destruction of property to the police or local administration before seeking a civil remedy; the civil standard of proof applies.
  • Delay by the court in delivering judgment does not disentitle a successful litigant to interest on the decretal amount.

Court orders

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  1. 1.The Appellant's appeal is dismissed in its entirety
  2. 2.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Section 26
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (5)

  • Selle & Another -vs- Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peters -vs- Sunday Post Ltd
    [1958] EA 424
  • Watt -vs- Thomas
    [1947] A.C. 424
  • Kapsiran Clan -vs- Kasagur Clan
    [2018] eKLR
  • Hussein Janmohamed & Sons -vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Chief Magistrate's Court, Nyahururu
Nyahururu CM ELC No. 60 of 2018
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court (Environment and Land Court Act)

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, "Giathi v Mwirikia (Environment and Land Appeal 28 of 2023) [2024] KEELC 6505 (KLR)", Case Analysis (2024). Nyahururu ELC Appeal (against Nyahururu CM ELC No. 60 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6505/eng@2024-10-03

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