Hayer Bishan Singh & Sons Ltd v Agwena (Suing as legal representative of Ngeso Omuga - Deceased) (Environment and Land Appeal E002 of 2025) [2026] KEELC 1405 (KLR)

The Appellant argued under sections 7 and 9(2) of the Limitation of Actions Act that the right of action of a deceased in actual possession accrued on death in 1996, so the claim was barred. The court found from the pleadings and evidence that the trespass commenced in or about December 2022 and continued until stopped by the court. Relying on the continuing-tort principle, each act was a fresh cause of action. The court also noted the Appellant had raised limitation as a preliminary issue before the trial court and that ruling dismissing it was not appealed.

The court acknowledged that neither the plaint nor the witness statement mentioned the parcel number, but the Respondent produced a certificate of official search showing registration of the parcel in the name of Ngeso Omuga, and a ground report by surveyor Harry Ochieng showing 0.54 Ha excavated. DW1 admitted the Appellant had leased parcel 1171 (claiming parking use) but no evidence of the parking was adduced. On a balance of probabilities, the Respondent proved the trespass and that it was committed by the Appellant.

The Respondent pleaded special damages and produced photographs, a valuer's report and official receipts. The valuer's report assessed the damage arising from the excavation at Kshs.12,800,000. No contrary valuation report was produced by the Appellant to discount the Respondent's valuation, so the court found the damages as awarded by the trial court were proved.

Applying section 27 of the Civil Procedure Act, the court held that costs follow the event. Since every issue raised in the appeal was determined in favour of the Respondent, the appeal was dismissed with costs to the Respondent, and the trial court's costs award was left undisturbed.