Mwihaki v Safaricom PLC

urged the court to dismiss the suit and also sought to have the suit dismissed in its notice of Preliminary Objection on account of having been instituted out of time contrary to section 4(2) of the Limitations of Actions Act. The Plainti ’s case 3. The Plainti’s case is contained in her plaint dated 17th May 2021, her evidence tendered in court during trial and the written submissions dated 11th April 2023. Besides the oral evidence which the Plainti tendered, she adopted her witness statement and bundle of documents dated 17th May 2021 as her evidence in chief. 4. It was the Plainti’s case that the Defendant entered into her land sometimes in the year 2013, excavated and caused a Fibre Optic Cable traversing approximately 105 meters together with an Inspection Chamber to be laid/installed thereon. It was also averred that the Defendant continued to frequently enter into the property Kabete/Karura/2426 more specically to maintain the cable and access the Inspection Chamber without her knowledge and or consent and it was only until March 2020 that she became aware of the same and she engaged the defendant via email and letters from her advocates severally but the same were ignored. 5. The Plainti also averred that the defendant’s action amount to negligence, trespass and nuisance particulars of which were pleaded at paragraph 14 of the plaint. The Plainti has sought to have the Defendant regularize its continued use of her land and compensate her for trespass to no avail. 6. The Plainti testied as PW1 and the sole Plainti’s witness. She added that she has never given permission to the Defendant to access her land and neither has she ever been compensated for the same. 7. In cross-examination, she stated that she became aware of the trespass in 2020. She stated that the same was within her property which had not been fenced. She also stated that she knows the boundaries of her property which is just 1 acre even though she does not stay in the said property. 8. In re-examination she stated that the man hole had bre cables and a checking chamber. She also stated that the defendant’s workers have to access her land for them to access the inspection chamber. The Defendant’s case 9. The Defendant’s case is contained in the defence dated 8th December 2022, witness statement by Joseph K. Mwangi dated 24th January 2023 and the oral testimony tendered therein by Joseph K. Mwangi on behalf of the Defence. The Defence also led a Notice of Preliminary Objection to the eect that the Plainti claim was led out of time. The Defence also led written submissions dated 19th April 2023. 10. It was the Defendant’s case that the Plainti’s cause of action is a tortious claim of trespass and that the same ought to have been led at the very latest sometimes in the year 2016 upon expiry of the three years. 11. At the hearing, Joseph Mwangi a Technical Engineer working with the Defendant testied as the sole defence witness DW1. He relied on his statement dated 24th January 2023 as his evidence in chief. It was his testimony that the Defendant never trespassed onto the Plainti’s property since prior to laying the cables, the Defendant sought and obtained approval from Kenya National Highways Authority (KeNHA) who conrmed that the identied stop upon which the bre optic cables are laid is within the road reserve and therefore on public land and further that the maintenance works were done in the open and during the day. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19802/eng@2023-08-30 2

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12. During cross-examination, he stated that he did not participate during the laying of the cables. He also stated that he does not know if the same were laid into the Plainti’s property since all the approvals were sought from the relevant government authorities. 13. When asked whether the Defendant had engaged the Plainti before laying the cables and the checking chamber, he stated that there was no report conrming the same and that no compensation had been made. 14. In re-examination he stated that he had visited the property and that there was a river close to the said property. He also reiterated that they had approached KeNHA which gave them permission prior to the laying of the cables. He also stated that the cables were laid within the way leave area of the road. The Plainti ’s submissions 15. The Plainti led written submissions dated 11th April 2023. The written submissions were led by Gikunda Miriti & Co. Advocates. Counsel outlined three issues for determination; i. Whether the Defendant trespassed into the suit properties without authority of the Plainti. ii. Whether the Plainti is entitled to general and exemplary damages. iii. Whether the order of permanent injunction restraining the defendant from dealing with the suit property should be given. 16. Counsel submitted that the Defendant entered into and has remained in occupation from 2013 todate. The Defendant’s continued occupation from 1st date of entry in so far as it is unauthorized amounts to trespass and has continued to date. 17. Relying on the case of Park Towers Ltd v John Mithamo Njika & Others (2014) eKLR, the Plainti submitted that she is entitled to a sum of Kshs 10,000,000 as general and exemplary damages. 18. The Plainti also submitted that the court should make an order of permanent injunction restraining the defendant from dealing with her property. The Plainti made reference to the following authorities which the court has duly considered. Giella –v Cassman Brown & Co. Ltd (1973) EA 358, Rhoda S. Kiilu v Jiangxi Water and Hydropower construction Kenya Limited (2019) eKLR and Ochako Obinchu v Zachary Oyoti Nyamongo (2018) eKLR. The Defendant’s submissions 19. The defendant led written submissions dated 19th April 2023 through Mahmoud Gitau Jillo Advocates. 20. It was submitted that the Plainti’s claim is a tortious claim which was led out of time beyond the three years’ limitation period from 2013. 21. The Defendant also submitted that from the evidence that was tendered, the Defendant’s testimony is more believable to the eect that the ber optic cables are on the road reserve and done with the authority of KENHA. 22. Counsel for the Defendant also submitted that the Plainti had failed to discharge the burden of proof of trespass. Reliance was made to the case of Justin Gatumatu v Kenya Power & Co. Ltd (2018) eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19802/eng@2023-08-30 3

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Analysis and Determination 23. I have considered the pleadings, the parties written submissions and evidence tendered. The key issues that fall for determination are as follows: i. Whether the Plainti suit is time barred. ii. Whether the Plainti has proved her case to the required standard. iii. Whether the Plainti is entitled to the remedies sought. iv. Who should bear costs of the suit. I shall now proceed to analyze all the issues raised sequentially. Issue No. I Whether the Plainti ’s suit is time barred. 24. This is the rst fundamental issue for consideration. The Defendant in its notice of Preliminary Objection and written submission challenged the suit on the basis that the same is time barred having been led after 3 years basing on when the cause of action arouse. It was argued that the Plainti’s cause of action is based on the tort of trespass which occurred in 2013 and ought to have been led at the very latest in 2016. 25. During the hearing the Plainti maintained that she knew of the trespass in March 2020. The same was also pleaded in her plaint. 26. Section 3(1) of the Trespass Act, Cap 294 provides that: “ Any person who without reasonable excuse enters, is or remains upon or erects any structure on or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an oence.” This trespass is an intrusion by a person into the land of another who is in possession and ownership. 27. Trespass is considered an action of tort. Section 4(2) of the Limitation of Actions Act Cap 22 provides that; “ An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.” 28. In the instance case, it was the Plainti’s case that he discovered the actions of the Defendant in March 2020 and to date the Defendant continued occupation is and still remains to date. From the foregoing, it is evident that the act of trespass as pleaded herein is an act of continuous trespass. Every continuous act of a trespass is a fresh trespass of which a new cause of action arises from day today as long as the trespass continues. 29. The onset of the trespass was in 2013. It is still continuing to the present day and solely for the benet of the Defendant. In the case of Gladys Koskey v Benjamin Mutai (2017) eKLR the court held as follows: “ On the rst issue, the suit is founded on trespass which is a tort. Under section 4 of the Limitation of Actions Act, an action founded on a tort must be instituted within three years. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19802/eng@2023-08-30 4

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However, as the plaint indicates, the trespass is continuous and the limitation of Actions Act does not come into play. This is supported by the case of Nguruman Limited v Shample Group Ranch & 3 others Civil Appeal No. 73 of 2004 reported in 2007 KLR. Citing clerk and lindsel on Torts 16th Edition Paragraphs 23 – 01 the Court of Appeal stated that, “ every continuance of a trespass is a fresh trespass in respect of which a new cause of action arises from day to day as the trespass continues.” Similarly, in Jospeh Koech v County Government of Uasin Gishu & 3 others (2022) eKLR the court held that; “The particulars of the trespass in the Plainti’s claim are clear that the 1st and 4th Defendants have entered the suit property and have remained on the same and have denied the Plaintis entry to the same. It is therefore clear that trespass is a continuous one which cannot be barred either by the Public Authorities Limitation Act or the Law of Limitations Act.” 30. Being guided by the aforementioned authorities, it is evident that in the instant case the trespass rst occurred in 2013 and continues to present day. As such the Defendant’s objection on whether the Plainti’s suit is time barred is unfounded. It is the nding of this court that the Plainti’s suit is properly before this court. Issue No. II Whether the Plainti has proved her case to the required standard. 31. It is trite law that whoever alleges must prove. This is set out under Section 107(1)(2) of the Evidence Act, which provides as follows: “ (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 32. It is not disputed that the Defendant entered into the Plainti’s property Kabete/Karura/2426 in 2013 and laid ber optic cables and an inspection chamber. The Defendant however averred that the same were laid in a road reserve and upon approval from Kenya National Highways Authority. 33. During the hearing, the Plainti was able to adduce evidence and indeed testify that the said ber optics were laid in her property. The Defendant did not produce any evidence to controvert the Plainti’s testimony on the issue. Neither did they produce any approval from KENHA to conrm that indeed the cables had been laid on a road reserve and with the approval of the KENHA. In the circumstances, this court is satised that the Plainti has been able to prove her case to the required standard. Issue No. III Whether the Plainti is entitled to the prayers sought. 34. The Plainti has sought for general and exemplary damages for trespass, an order for permanent injunction and costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19802/eng@2023-08-30 5

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35. As earlier stated, the onset of trespass was in 2013 and it is still continuing to the present day for the benet of the Defendant. Hence therefore damages that ought to be awarded should be consumerate to the loss suered by the Plainti from the Defendant’s continuing trespass onto her land. 36. In her submissions the Plainti urged this court to award her Kshs 10,000,000 on account of general and exemplary damages for trespass. In the case of Kenya Power & Lighting company Ltd v Ringera & 2 others (Civil Appeal E247 of 2020 (Consolidated) (022) KECA 104(KLR) 4 February 2022) (Judgment), the Court of Appeal in considering an action of continuous trespass that had commenced in 2013 awarded Kshs 2,000,000 and Kshs 4,000,000/- respectively to the 1st and 2nd Respondents. Being guided by the above, I will equally proceed to award Kshs 2,000,000/- to the Plainti as general damages of trespass. 37. In respect to the prayer of a permanent injunction as sought against the Defendant, I wish to state that a permanent injunction prohibits a party from engaging in certain activities or mandates specic actions to be taken, typically for an indenite or extended period. It is a nal and binding remedy issued at the conclusion of a legal proceeding. Permanent injunctions are equitable remedies designed to prevent irreparable harm, protect rights, and ensure compliance with legal obligations. They are characterized by their enduring nature and ability to provide ongoing relief beyond the resolution of the immediate dispute a court will issue a permanent injunction only where momentary damages will not suce. One of the essential elements in a suit for a permanent injunction is the absence of an adequate legal remedy. The plainti must demonstrate that seeking monetary damages or other legal remedies would not suciently address the harm caused or prevent future harm. This requirement emphasizes the unique nature of injunctive relief, which is sought when monetary compensation alone is deemed insucient to protect the plainti’s rights or interests. The inadequacy of legal remedies can arise due to the diculty in quantifying the harm, the ongoing or irreparable nature of the harm, or the inability to fully restore the plainti’s rights through monetary means. The court will consider whether an injunction is necessary to provide eective and equitable relief in the given circumstances. 38. In the instant case, the court is of the view that there exists an alternative remedy to the Plainti and further that the laid ber cable continues to serve the general public and it will not serve any meaningful purpose in granting such prayer for permanent injunction as sought by the Plainti. In the circumstances the same is declined. 39. In respect to costs, as a general rule, costs follow the event unless the court for good reason orders otherwise. In the present case the Defendant’s action triggered the ling of this suit by the Plainti. In the circumstances the defendant shall bear the costs of the suit. Final orders 40. In conclusion, this court having been satised that the Plainti has proved her case against the Defendant to the required standard makes the following orders: a. General damages for trespass for Kshs 2,000,000/- b. The Defendant shall bear the costs of the suit. Judgment accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF AUGUST 2023. E.K. WABWOTO https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19802/eng@2023-08-30 6

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JUDGE In the presence of:Mr. Gikunda for the Plainti. Ms. Biegon h/b for Mr. Etemere for the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19802/eng@2023-08-30 7

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