Carey Investments Co. Limited v Sino Hydro Tianjin Engineering Co. Ltd & another (Environment and Land Appeal E097 of 2022) [2026] KEELC 1422 (KLR)
The bottom line
#A Kenyan court awarded damages for land trespass even without proof of loss, but rejected most claimed expenses due to missing receipts and evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether general damages were awardable despite the trial court having declined them after finding trespass
The trial court erred in refusing damages after finding encroachment; trespass being actionable per se, general damages of Kshs. 1,000,000/= were awarded as a reasonable sum in the circumstances
The court applied Selle v Associated Motor Boat Co. as a first appellate court, re-evaluating the evidence. It found ownership undisputed and trespass established. Citing Kenya Power & Lighting Co. v Fleetwood Enterprises, trespass is actionable per se. Although the valuation report did not state the land's value before and after the trespass, nominal/conventional general damages were warranted; Kshs. 1,000,000/= was considered reasonable, guided by Nakuru Industries Ltd v S S Mehta & Sons and Willesden Investments Ltd v Kenya Hotel Properties.
Whether aggravated damages were warranted
Aggravated damages of Kshs. 500,000/= were awarded based on the Respondents' conduct in constructing a road across the property and damaging the main sewer line
Applying Obongo and Another v Municipal Council of Kisumu, the court noted that when damages are at large, the court may take into account malice or arrogance on the part of the defendant as increasing the injury. The Respondents' trucks transporting heavy materials and the damage to the main sewer line causing effluent to drain onto the property justified an aggravated award.
Whether the special damages of Kshs. 7,916,444/= were proved
Only Kshs. 820,000/= for building materials was proved; the loss of rental income and sewer repair costs failed for want of strict proof
Applying Hahn v Singh, Total (Kenya) Ltd v Janevans Ltd and Andrew Mwori Kasaya v Kenya Bus Services Ltd, the court held that special damages must be specifically pleaded and strictly proved with actual receipts, not pro forma documents. The valuation report by Crystal Valuers did not establish the land's value before and after the trespass; the rent claim lacked evidence of payments or termination; the sewer repair claim lacked receipts, a contract, Bills of Quantities or County approvals.
Legal principles established
#- Trespass is actionable per se; the affected party need not prove damage or loss to be awarded damages
- Special damages must be both specifically pleaded and strictly proved
- A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
Court orders
#- 1.General damages awarded in the sum of Kshs. 1,000,000/=
- 2.Aggravated damages awarded in the sum of Kshs. 500,000/=
- 3.Special damages awarded in the sum of Kshs. 820,000/=
- 4.Appellant to have costs of the suit
- 5.Interest on the damages awards at court rates from the date of judgment until payment in full
- 6.Appellant to have costs of the appeal
- On appeal from
- Chief Magistrate's Court (Hon Kagoni E.M., PM)
- CMCC No. 7028 of 2019
- Jurisdiction invoked
- First appellate jurisdiction under Section 78 of the Civil Procedure Act; powers under Section 13(7)(c) & (d) of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Carey Investments Co. Limited v Sino Hydro Tianjin Engineering Co. Ltd & another (Environment and Land Appeal E097 of 2022) [2026] KEELC 1422 (KLR)", Case Analysis (2026). ELC Appeal (Nairobi) arising from CMCC No. 7028 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1422/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.