Getembe Hospital Limited & another v Masaba Farmers Co-operative Union & 2 others (Environment & Land Case 821 & 1014 of 2016 (Consolidated)) [2025] KEELC 383 (KLR)
The bottom line
#A Kisii court awarded a hospital KShs 1 million for illegal eviction but rejected its KShs 26.8 million claim because it lacked receipts and records.
What this practically means
#Executive summary
#Key legal issues
#Res judicata over the legality of the eviction
The question whether the eviction violated a court order was conclusively determined by Musinga J in Kisii HCMisc. Civil Application No. 167 of 2010 and cannot be revisited.
The defendants had been held in contempt for irregularly obtaining and executing an eviction order. The court held that liability was thereby determined, and the defendants' remedy, if dissatisfied, was an appeal or review, neither of which was pursued. The only surviving question was quantum of damages.
General damages for illegal eviction
General damages of Kshs. 1,000,000/= awarded jointly and/or severally against the 1st and 2nd defendants.
Given the earlier finding of illegal eviction, the plaintiff was entitled at least to general damages for trespass. Counsel asked for Kshs. 20,000,000/= without authority or evidence of the size of premises or rent payable, so a modest award was made considering all circumstances.
Proof of special damages
Special damages claim of Kshs. 26,827,450/= dismissed for want of specific pleading and proof.
The valuer relied entirely on word of mouth with no receipts, inventory, balance sheet, supplier or regulator records, or photographs. Expensive medical items would normally have warranty or service records. Some listed items implied an in-patient facility for which no licence was exhibited, and awarding on them would reward an illegal operation.
The 1st defendant's counterclaiming suit
The Cooperative's suit dismissed in its entirety.
The declaration of ownership was unnecessary as ownership was undisputed; a permanent injunction could not issue while the possession appeal was pending; and damages for trespass could not be granted because the plaintiff's eviction had been found illegal.
Legal principles established
#- An issue already determined in prior proceedings cannot be revisited; the court cannot sit on appeal over its own or a coordinate court's ruling (res judicata).
- Damages for lost business are special damages that must be specifically pleaded and proved.
- A valuation report founded solely on hearsay, without receipts, records or photographs, cannot prove special damages.
- A party is not entitled to special damages in respect of an unlicensed operation, as that would reward an illegality.
Court orders
#- 1.General damages of Kshs. 1,000,000/= awarded to the plaintiff for illegal eviction, jointly and/or severally against the 1st and 2nd defendants
- 2.The claim for special damages of Kshs. 26,827,450/= dismissed
- 3.The claim for damages for lost business dismissed
- 4.The suit by Masaba Farmers Cooperative Union Limited dismissed
- 5.No order that the plaintiff regain possession of the premises
- 6.Plaintiff to have costs of her case jointly and/or severally against the 1st and 2nd defendants; the 1st defendant's suit dismissed without any orders as to costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over transferred High Court suits relating to land (Kisii Municipality/Block II/17)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Getembe Hospital Limited & another v Masaba Farmers Co-operative Union & 2 others (Environment & Land Case 821 & 1014 of 2016 (Consolidated)) [2025] KEELC 383 (KLR)", Case Analysis (2025). Kisii ELCC No. 821 of 2016 (consolidated with Kisii ELCC No. 1014 of 2016, formerly Kisii HCCC No. 154 of 2012 and Kisii HCCC No. 362 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/383/eng@2025-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.