Clairmont Investment Limited v China Communication Construction – Company Limited (Environment & Land Case 82 of 2019) [2023] KEELC 825 (KLR)

(i) Current market value of Kshs 12, 500, 000/-. (ii) Disturbance at 15% of the value Kshs 1, 875, 000/-. (iii) Loss of profit/rental at Kshs 150,000/- per month from July, 2016= 4,500,000/- to December 2018. (iv) Valuation charges = 152, 775 Total…………………………………. = 19, 027, 775/-. 3. In support of his case, the plaintifi filed the following evidence. (a) Witness statement dated February 6, 2019. (b) Copy of title deed dated August 18, 2011. (c) Copy of valuation report dated January 18, 2018. (d) Copy of receipt dated January 18, 2018 for Kshs 152, 775/- (e) Witness statement by Julius Mwangi Mugo. 4. The defendant, through counsel on record filed a written statement of defence dated March 1, 2019 in which it denies all the averments in the plaint. 5. In support of its defence, the defendant filed the following evidence. (i) Valuation report dated September 14, 2021. (ii) Bernard M Nzau’s annual practicing certificate for the period January 1, 2021 to December 31, 2021. (iii) Bernard M Nzau’s certificate of registration dated September 29, 2004. 6. At trial on January 17, 2022, the plaintifi called one witness by the name of Julius Mwangi Mugo who adopted his witness and another one named Dominic Mutua Muoka who produced the valuation report. The two witnesses supported the plaintifis claim as per the plaint. 7. On the other hand, the defendant called Barnard Nzau who disputed the valuation report by the plaintifi’s witness. According to Mr Nzau, the following are the valuation details for the land. 8. (i) Value of the suit land Kshs 6, 000,000/- (ii) Value of the land occupied by the abandoned septic development and concreted areas of the property Kshs 3,000,000/- . (iii) Rental value of the abandoned septic development and the concreted areas of the suit property Kshs. 40,000/-. Counsel for the parties filed written submissions on February 11, 2022 and May 26, 2022 respectively. I have carefully considered the evidence adduced by both sides as well as the submissions on record. I have also considered the law cited in the submissions. I make the following findings. Firstly, I find that there are two confiicting reports by the plaintifi’s valuer and the defendant’s valuer. Faced with the two confiicting, reports, I will go by the one with the lower figures. The plaintifi should https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/825/eng@2023-02-16 2

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have filed a third report after being served with the defendant’s report. This was the only way to preponderate his case after its report was disputed by an expert. Secondly, the plaintifi has not proved that as at the date of the trespass by the defendant on the suit land, he was ready and able to build apartments that would have fetched him Kshs 150,000/- per month. He has not shown that he had the resources to undertake such a project. He has not exhibited approved plans by the relevant authorities for the project. He has not stated how long the project would have taken. He would have been entitled to such a claim if the defendant had demolished an apartment on the suit land that was fetching Kshs 150,000/- per month. Thirdly, it is not disputed that the defendant trespassed onto the suit land constructed the infrastructure complained of. Fourthly, neither the plaintifi nor the defendant has adduced the crucial evidence of the duration of the trespass. Consequently, I award the plaintifis the following. (a) Kshs 3, 000,000/=being the value of the land occupied by the abandoned septic development. (b) Kshs 1,440, 000/- being the value of lost rent for a period of 3 years at the rate of Kshs 40,000/ = per month. (c) Kshs 300,000/- for trespass. Total Kshs 4, 740, 000/=. The plaintifi will also have the costs of the suit. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 16TH DAY OF FEBRUARY, 2023. M.N. GICHERU JUDGE JUSTICE M.N. GICHERU JUDGMENT ELC NO. 82/2019 3 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/825/eng@2023-02-16 3

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