Homem v Standard Group PLC (Environment and Land Appeal E152 of 2024) [2026] KEELC 2845 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Magistrate erred in law and/or fact by failing to determine the specifically pleaded reliefs of vacant possession, mesne profits and/or damages for trespass
- 2.Whether the Appellant properly pleaded and proved trespass, continued occupation, or failure to give vacant possession
- 3.Whether the Appellant properly pleaded and proved entitlement to mesne profits and/or damages for trespass
- 4.Whether this Court ought to interfere with the decision of the learned Magistrate
- 5.What consequential orders should issue, including as to costs
Key legal issues
#Failure of the trial court to determine pleaded reliefs
The omission to determine the pleaded reliefs of vacant possession, mesne profits and damages was a misdirection in law warranting appellate intervention, but it did not of itself entitle the Appellant to the reliefs.
Order 21 Rule 5 requires a court to determine all issues properly before it. The trial judgment was silent on the contested prayers, with no reasons for their non-award. However, the appellate court must itself evaluate the evidence to decide whether the reliefs are warranted before granting them.
Pleading and proof of trespass and continued occupation
The pleading was contingent and prospective, no amendment converted it into an accrued cause of action, and no evidence of continued occupation was adduced; the claim failed.
The words 'in the event that' and 'shall fail' rendered paragraph 12 of the Plaint contingent. The hearing occurred long after expiry, yet no amendment was made. The Appellant admitted no compliant termination notice was issued, and produced no photographs, inspection reports or correspondence proving continued occupation; Third Party evidence indicated possession had reverted to the Appellant.
Entitlement to mesne profits and damages for trespass
Mesne profits, being special damages requiring specific pleading and strict proof, and damages for trespass, requiring trespass first to be pleaded and proved, both failed.
Wrongful possession is the essence of mesne profits; without lawful termination of the licence, wrongful possession was absent. No quantified amount, rate or particulars were pleaded, and the Appellant conceded this before the trial court, binding her on appeal under the principle against approbating and reprobating.
Whether the appellate court should interfere with the trial decision
Although the misdirection was established, the substantive outcome was correct on re-evaluation, so the Court declined to disturb it.
Appellate intervention is pointless where the fresh evaluation reaches the same result as the trial court. The reliefs were not warranted in law or fact on the pleadings and evidence, so the appeal, though procedurally justified by the omission, had to fail on the merits.
Legal principles established
#- A court adjudicating a civil suit must determine all issues properly before it; an unexplained omission to pronounce on a pleaded and argued relief is a misdirection warranting appellate intervention, though it does not of itself entitle the appellant to the reliefs sought.
- Parties are bound by their pleadings; an appellate court will not permit a party to introduce, through submissions, facts or reliefs never pleaded or proved.
- A licensee in occupation under a subsisting contractual right cannot be a trespasser without lawful termination of the licence; the remedy for breach lies in contract.
- An appellate court will not disturb a trial decision merely because of a procedural misdirection where its own re-evaluation leads to the same substantive outcome.
Court orders
#- 1.The appeal is hereby dismissed
- 2.The judgment of the trial court and the consequential decree arising therefrom be and is hereby affirmed
- 3.Each party shall bear own costs of the appeal
- 4.The costs order of the subordinate court in favour of the Appellant shall remain undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Chief Magistrate's Court
- Suit No. E439 of 2021
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act (Cap 21) and Order 42 of the Civil Procedure Rules, 2010 (first appeal)
Relief refused
#Vacant possession including removal of the billboard structure
Trespass and continued occupation were neither properly pleaded as an accrued cause of action nor proved by any evidence; the licence was never lawfully terminated per its termination provisions
Mesne profits and/or general damages for trespass
Wrongful possession, the essence of mesne profits, was never established; mesne profits as special damages were neither specifically pleaded nor strictly proved, and the appellant conceded this before the trial court
Damages quantified at Kshs. 3,500,000/= advanced on appeal
Quantum never pleaded, never proved, and advanced only through appellate submissions, which cannot substitute for evidence and pleadings
Costs
Each party shall bear own costs of the appeal; the costs order of the subordinate court in favour of the Appellant remains undisturbed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
(i) The appeal is hereby dismissed. (ii) The judgment of the trial court and the consequential decree arising therefrom be and is hereby affirmed. (iii) Each party shall bear own costs of the appeal.
The learned Magistrate's failure to determine the specifically pleaded reliefs of vacant possession, mesne profits and/or damages constitutes a misdirection in law warranting appellate intervention.
A licensee who occupies premises pursuant to a subsisting agreement, even one that has been breached, cannot in law be characterised as a trespasser without more
The law does not permit parties to litigate by ambush, nor does it allow submissions at the appellate stage to substitute for evidence and pleadings at trial.
wrongful possession is the very essence of a claim for mesne profits
Interference is warranted only where the outcome, not merely the reasoning, would differ.
it is not the function of an appellate court to disturb a decision that, upon a fresh evaluation, is found to be correct on the merits
Issues in the judgment
#The Appellant's Written Submissions assert a Termination Notice was issued, which the Court found irreconcilably contradicted by her own sworn testimony at trial.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Homem v Standard Group PLC (Environment and Land Appeal E152 of 2024) [2026] KEELC 2845 (KLR)", Case Analysis (2026). ELCA No. E152 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2845/eng@2026-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.