William Jefry Okwirry & 3 others v The City Manager, Kisumu City & 4 others

thereof; a declaration that the demolition of the partially finished maisonettes standing on the suit properties by the 1st, 2nd and 3rd defendants was a gross violation of their right to property under Article 40 of the Constitution; an injunction restraining the defendants from wasting, utilising, transferring, interfering with or in any manner dealing with the suit properties; special damages; general damages; aggravated damages for unlawful trespass; and costs and interest of the suit. 2. The plaintiffs' case, as pleaded and as set out in the witness statement of the 1st plaintiff dated 3 rd April 2023, is that on 12th March 2021 persons acting as servants, agents, employees or representatives of the defendants descended upon the suit properties with bulldozers, cranes and other construction machinery and brought the partially finished maisonettes standing thereon down into rubble and dust, without due regard to the law and to the plaintiffs' constitutional right to property. 3. The suit properties were acquired by the plaintiffs in 1995 upon the exercise of a power of sale by the Deposit Protection Fund Board, the liquidator of the then defunct JUDGMENT ELC E005 OF 2023 2

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Post Bank Credit Limited, which was at the time under receivership. The sale was by public auction and was reduced into an agreement for sale dated 14 th July 1995. The consideration was Kshs. 500,000/= for each parcel, an aggregate of Kshs. 2,500,000/=. A transfer by chargee was thereafter registered in the plaintiffs' favour and certificates of lease were issued to them. 4. The 1st, 2nd and 3rd defendants do not dispute that the demolition took place. Their position, as crystallised in their written submissions, is that the demolition was carried out by persons who believed that the land belonged to the County Government of Kisumu, and that the plaintiffs have in any event suffered no loss capable of compensation beyond a nominal award. The consent of 30th September 2025 and the compass of this judgment 5. On 30th September 2025 the parties recorded a consent in two limbs. By the first, the 1st, 2nd and 3rd defendants relinquished any and all rights over the suit properties and agreed that the plaintiffs are the bona fide proprietors JUDGMENT ELC E005 OF 2023 3

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thereof. By the second, the parties undertook to negotiate and record a further consent in respect of the balance of the prayers in the plaint within forty-five (45) days. 6. The negotiations contemplated by the second limb did not bear fruit. The court thereupon directed the parties to file written submissions on the outstanding prayers. The plaintiffs filed submissions dated 9 th July 2026 together with a bundle of authorities. The 1st, 2nd and 3rd defendants filed submissions dated 31st July 2026. The 4th and 5th defendants did not file any submissions and no relief was pressed against them. 7. The consent has therefore disposed of the question of title. The prayer for a declaration of proprietorship is spent, and the prayer for an injunction is rendered otiose by the relinquishment of all claims to the suit properties. What survives for determination is the plaintiffs' claim in damages, together with the questions of interest and costs. 8. I should state at the outset that liability is not in issue before me. The 1st, 2nd and 3rd defendants have conceded the plaintiffs' proprietorship. It has not been JUDGMENT ELC E005 OF 2023 4

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suggested, on the pleadings or in the submissions, that the entry upon the suit properties was preceded by any enforcement notice, any order of a court, or any process of compulsory acquisition under Part VIII of the Land Act, 2012. Indeed, the 1st, 2nd and 3rd defendants expressly invite the court to award "minimal or nominal damages for trespass", which is itself an acceptance that a trespass was committed. The contest is confined to quantum and to costs. The Plaintiffs' submissions 9. The plaintiffs submit that with the question of title settled, the only issues remaining are the quantum of compensation and costs. They rely on the Damage Assessment Report by Add Property Consultants, produced as Exhibit-006, which assesses the replacement cost of each of the demolished structures at Kshs. 6,400,000/=. Multiplied across the five parcels, that yields Kshs. 32,000,000/=. To that figure the plaintiffs add what they describe as a 7% inflation appreciation from 2022 to JUDGMENT ELC E005 OF 2023 5

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2025, arriving at a claim of Kshs. 38,000,000/= as actual replacement cost. 10. In addition, the plaintiffs claim special damages of Kshs. 2,000,000/=, aggravated and/or exemplary damages of Kshs. 6,000,000/=, and general damages to be assessed by the court for years of psychological suffering, mental torture and loss of business arising out of the demolished maisonettes. 11. Counsel invoked the cardinal principle that an injured party should, so far as money can do it, be restored to the position he would have occupied had the wrong not occurred, and relied on Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25. Reliance was also placed on Kental Enterprises Ltd v Attorney General & 4 others [2025] KEELC 1470 (KLR), where compensation of Kshs. 2,013,500,000/= together with Kshs. 50,000,000/= in exemplary damages was awarded for an unlawful demolition; on Mike Maina Kamau v Attorney General; and on Sila Munyao & another v County Government of Kakamega, where the sums of Kshs. 40,500,000/=, Kshs. 2,400,000/= and Kshs. 60,000/= JUDGMENT ELC E005 OF 2023 6

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were awarded for an unlawful taking, the cost of rebuilding a perimeter wall and valuation fees respectively. 12. On costs, the plaintiffs rely on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR for the proposition that costs are awarded to reimburse the successful party for the expense to which he has been put, and submit that but for the conduct of the defendants these proceedings would never have been commenced. On interest they rely on B.O.G. Tambach Teachers Training College v Mary Kipchumba [2018] eKLR and Later v Mbiyu (1965) EA 592. The 1st, 2nd and 3rd Defendants' submissions 13. The 1st, 2nd and 3rd defendants submit that special damages must be both specifically pleaded and strictly proved, relying on Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716 and on Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] KEHC 2976 (KLR). They contend that the only sum the plaintiffs have shown they expended on the suit properties is the JUDGMENT ELC E005 OF 2023 7

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purchase price of Kshs. 2,500,000/=, and that there is not a single receipt evidencing construction or improvement. 14. They emphasise that clause 12 of the agreement for sale by auction dated 14th July 1995 provided that the property was sold on an "as is" basis; that the structures were uncompleted when the plaintiffs bought them; that the plaintiffs neither built nor completed them at any time since 1995; and that paragraph 9.3 of the plaintiffs' own valuation report records that construction of the buildings had stalled for many years at the time of demolition. To award the replacement cost of structures the plaintiffs neither built nor improved would, it is said, amount to unjust enrichment. 15. On the measure of damages, the defendants rely on Philip Ayaya Aluchio v Chrispinus Ngayo [2014] eKLR, in which Obaga J. held that the measure of damages for trespass is the difference in the value of the property immediately before and immediately after the trespass, or the cost of restoration, whichever is less, and awarded a nominal figure of Kshs. 100,000/=. They also cite Willesden Investment Limited v Kenya Hotel JUDGMENT ELC E005 OF 2023 8

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Properties Limited, HCCC No. 367 of 2000 for the proposition that there is no mathematical formula in such cases. They urge that the property lay deserted in a less prestigious location from 1995, generated no business and had no tenants, and that only a minimal award for trespass is warranted. 16. On costs, the defendants invoke section 27 of the Civil Procedure Act, Republic v Rosemary Wairimu Munene, Ex-parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd [2014] eKLR and Rufus Njuguna Miringu & another v Martha Muriithi & 2 others [2012] eKLR, submitting that where a matter is settled by consent neither party can be said to have succeeded, and that each party should bear its own costs. Issues for determination 17. Having considered the pleadings, the documents on record, the consent dated 30 th September 2025 and the rival submissions, the issues that fall for determination are the following: JUDGMENT ELC E005 OF 2023 9

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(i) Whether the plaintiffs have proved their claim for the replacement cost of the demolished structures and, if so, in what sum; (ii) Whether the plaintiffs are entitled to special damages of Kshs. 2,000,000/=; (iii) Whether, and in what measure, general damages for trespass ought to be awarded; (iv) Whether this is a proper case for an award of aggravated and/or exemplary damages; (v) Whether the plaintiffs are entitled to interest and from what date; (vi) Who should bear the costs of the suit. Analysis and determination The evidential basis of the assessment 18. It is necessary to say something first about the material upon which this assessment falls to be made. No oral evidence was tendered before me. The parties, having settled the question of title by consent, elected to have the residue of the claim determined on the pleadings, the witness statements and documents filed, and their written JUDGMENT ELC E005 OF 2023 10

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submissions. That course was open to them, and I proceed upon it. 19. Two consequences follow. The first is that the parties are bound by their pleadings, and this court cannot grant a party what it has not asked for. The second is that submissions, however forcefully advanced, are not evidence. As the Court of Appeal put it in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, submissions cannot take the place of evidence. A figure that surfaces for the first time from the bar does not thereby acquire evidential value. Issue (i): The claim for replacement cost 20. The governing principle is not in dispute. It was stated by Lord Blackburn in Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25 as being that sum of money which will put the injured party in the same position as he would have been in had he not sustained the wrong. The object is restitution, neither more nor less. A plaintiff is not to be left out of pocket; equally, he is not to emerge from the litigation better off than the wrong found him. JUDGMENT ELC E005 OF 2023 11

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21. Where a trespasser destroys buildings standing on land, the measure of damages is ordinarily the diminution in the value of the property occasioned by the wrong, or the reasonable cost of reinstatement, whichever is the lesser. That is the effect of Philip Ayaya Aluchio v Chrispinus Ngayo [2014] eKLR, on which the defendants correctly rely. 22. The defendants advance three objections to the claim. I do not accept the first two. 23. The first is that the plaintiffs did not themselves build the structures. That is, with respect, immaterial. By the maxim quicquid plantatur solo, solo cedit, buildings affixed to land pass with the land, and "land" as defined in section 2 of the Land Registration Act, 2012 includes buildings and other structures permanently affixed to it. The plaintiffs took title to the parcels together with everything affixed to them. A tortfeasor cannot answer the claim of the owner of a building by saying that the owner did not lay the bricks. What the plaintiffs lost was theirs to lose. 24. The second objection is that the plaintiffs purchased the properties on an "as is" basis for Kshs. 500,000/= per JUDGMENT ELC E005 OF 2023 12

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parcel in 1995. Clause 12 of the agreement for sale regulated the relationship between the plaintiffs and the chargee who sold to them. It conferred no benefit whatsoever upon the defendants, who were strangers to that bargain. Nor is a price paid in 1995 any measure of the value of what was destroyed in 2021. The relevant date for assessment is the date of the wrong, not the date of acquisition. 25. The third objection has more substance, though not in the form in which it is put. The defendants say there are no receipts of construction or improvement. That conflates two different things: the cost of acquiring or improving an asset, and the value of the asset destroyed. Strict proof of the value of destroyed property is ordinarily furnished by a valuation, not by receipts. The plaintiffs have produced such a valuation, and the defendants produced none in answer to it. Their attack on the report is one of law and inference, not of competing expert evidence. 26. Where the objection does bite is on quantum. The claim as pleaded was for the value of the demolished houses. In submissions the JUDGMENT ELC E005 OF 2023 plaintiffs seek Kshs. 38,000,000/=, 13

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arrived at by taking the assessed replacement cost of Kshs. 6,400,000/= per structure, multiplying it by five, and adding a "7% inflation appreciation" from 2022. That uplift is not pleaded, is supported by no evidence at all, and was introduced from the bar. It cannot stand. The claim is confined to what was pleaded and to what the valuation report supports, namely Kshs. 32,000,000/=. 27. Even that figure requires adjustment. The report values the replacement cost of the structures, that is to say the cost of putting up new buildings. But what was destroyed on 12th March 2021 was not five completed maisonettes. It was five stalled and incomplete structures which, on the plaintiffs' own evidence, had stood exposed to the elements for some twenty-six years. Paragraph 9.3 of the plaintiffs' own report records that construction had stalled for many years at the time of demolition. To award the full cost of new buildings in place of long-abandoned incomplete works would confer betterment, replacing old with new, and would overshoot restitution. 28. The plaintiffs, on whom the burden lay under sections 107 to 109 of the Evidence Act, led no evidence of the stage of JUDGMENT ELC E005 OF 2023 14

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completion of the structures or of their state of repair at the date of demolition. That gap is of their own making. But the difficulty of assessment is no reason to refuse an award altogether, and a wrongdoer is not to profit from the very uncertainty his wrong has created. Doing the best I can on the material available, I consider that a discount of 40% from the assessed replacement cost fairly reflects the incomplete condition of the structures, their deterioration over the intervening years, and the element of betterment inherent in a replacement valuation. I accordingly assess the compensation for the destroyed structures at Kshs. 19,200,000/=. Issue (ii): The claim for special damages of Kshs. 2,000,000/= 29. The law here is settled and the defendants have stated it correctly. In Hahn v Singh [1985] KLR 716 the Court of Appeal held that special damages must not only be specifically pleaded but also strictly proved, for they are not the direct, natural or probable consequence of the act complained of and may not be inferred from it. In Zacharia Waweru Thumbi v Samuel Njoroge Thuku JUDGMENT ELC E005 OF 2023 15

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[2006] KEHC 2976 (KLR) the court described special damages as a reimbursement to the victim of what he has actually spent as a consequence of the tortious act, to be proved usually by documentary evidence. 30. The plaint pleaded "special damages for the losses suffered" without particulars and without a figure. The sum of Kshs. 2,000,000/= appears for the first time in the plaintiffs' written submissions. No invoice, receipt, voucher or other document has been produced in support of it, and it is not explained what heads of expenditure it is said to comprise. The claim fails on both limbs of the test and it is dismissed. 31. For the same reason I can make no award for loss of business or loss of user. Although the plaintiffs assert loss of business arising out of the demolished maisonettes, there is nothing on the record to show that the suit properties were income-earning, tenanted or in any commercial use at the material time. That head is disallowed. Issue (iii): General damages for trespass JUDGMENT ELC E005 OF 2023 16

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32. Trespass to land is actionable per se. A plaintiff need prove no pecuniary loss in order to recover, for the award vindicates the right of the owner or possessor to be free of unauthorised intrusion. As the defendants themselves put it, without such damages trespassers would establish, by usage, a right to intrude upon the land of others with impunity. On quantum there is no mathematical or scientific formula, and each case turns on its own circumstances: Willesden Investment Limited v Kenya Hotel Properties Limited, HCCC No. 367 of 2000. 33. The defendants urge a nominal award. I am unable to go that far. The trespass here was not a fleeting or technical incursion. It involved heavy machinery, the destruction of every structure on five parcels of land, and it was followed by a denial of the plaintiffs' title which was maintained until the consent of 30th September 2025, some four and a half years later. Throughout that period the plaintiffs were kept out of the peaceful enjoyment of what was theirs. 34. At the same time, the award under this head must not duplicate the compensation I have already allowed for the destroyed structures. The two heads answer different JUDGMENT ELC E005 OF 2023 17

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injuries: the one, the pecuniary value of what was destroyed; the other, the invasion of the right itself. Bearing that distinction in mind, and taking the five parcels together, I assess general damages for trespass at Kshs. 1,500,000/=. Issue (iv): Aggravated and exemplary damages 35. Neither party addressed the court on the principles governing exemplary damages, and it is as well to state them. In Rookes v Barnard [1964] AC 1129 Lord Devlin identified as the first category in which such damages may be awarded that of oppressive, arbitrary or unconstitutional action by the servants of government. That categorisation was adopted in this jurisdiction in Obongo & another v Municipal Council of Kisumu [1971] EA 91, where the Court of Appeal for East Africa held that exemplary damages may be awarded against a local authority whose unconstitutionally, the servants object act being oppressively or punishment and deterrence rather than compensation. JUDGMENT ELC E005 OF 2023 18

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36. The present facts fall squarely within that first category. An organ of county government, or persons acting in its name, sent machinery onto privately owned land and reduced the buildings upon it to rubble. There was no enforcement notice. There was no order of any court. There was no acquisition, and no compensation was offered before or after. The belief that the land belonged to the county, even if honestly held, was not a licence to demolish; it was, at highest, a reason to come to court. Public authorities are bound by Articles 10, 40 and 47 of the Constitution, and self-help of this kind is the antithesis of the fair administrative action those provisions guarantee. 37. The authorities cited by the plaintiffs including the case of Kental Enterprises Ltd v Attorney General & 4 others [2025] KEELC 1470 (KLR) confirm the principle, though the values involved in those cases were of an altogether different order and afford no guide to quantum here. 38. Two matters temper the award. The first is that the 1st, 2nd and 3rd defendants did ultimately concede the JUDGMENT ELC E005 OF 2023 19

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plaintiffs' proprietorship by consent, sparing the court and the parties a contested trial on title. The second is that the burden of any award falls upon public funds, and moderation is called for. Aggravated and exemplary damages ought not in any event to be awarded twice over, and I make a single global award under this head of Kshs. 3,000,000/=. Issue (v): Interest 39. The justification for interest, as the Court of Appeal observed in B.O.G. Tambach Teachers Training College v Mary Kipchumba [2018] eKLR, citing Later v Mbiyu (1965) EA 592, is to compensate a plaintiff for the deprivation of the use of money or goods brought about by the wrongful act of the defendant. The plaintiffs have been kept out of their money and are entitled to interest. Consistently with established practice, interest on the pecuniary award runs from the date of filing suit, while interest on general and exemplary damages runs from the date of judgment. Issue (vi): Costs JUDGMENT ELC E005 OF 2023 20

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40. Costs are in the discretion of the court under section 27 of the Civil Procedure Act, but the discretion is a judicial one, and the settled rule embodied in the proviso to section 27(1) is that costs follow the event unless for good reason the court orders otherwise. 41. The plaintiffs have not recovered all that they claimed, but costs follow the event and not the quantum. They are entitled to the costs of the suit as against the 1st, 2nd and 3rd defendants. 42. As regards the 4th defendant, I make no order as to costs in their favour or against them. No relief having been sought against the 5th defendant, no orders are made against them either. Final orders 43. In the result, and for the reasons set out above, judgment is entered for the plaintiffs against the 1st, 2nd and 3rd defendants in the following terms: i. The prayers relating to the plaintiffs' proprietorship of Kisumu Municipality/Block 13/45, 13/46, 13/47, JUDGMENT ELC E005 OF 2023 21

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13/48 and 13/50, and the prayer for an injunction, stand disposed of by the consent of the parties dated and recorded on 30th September 2025. ii. The 1st, 2nd and 3rd defendants shall, jointly and plaintiffs severally, the pay sum to of the Kshs. 19,200,000/= being compensation for the value of the structures demolished on the suit properties. iii. The 1st, 2nd and 3rd defendants shall, jointly and severally, plaintiffs general trespass in the pay to the damages for sum of Kshs. 1,500,000/=. iv. The 1st, 2nd and 3rd defendants shall, jointly and severally, pay to the plaintiffs aggravated and exemplary damages in the sum of Kshs. 3,000,000/=. JUDGMENT ELC E005 OF 2023 22

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v. Interest shall accrue on the sum in order (ii) above at court rates from the date of filing suit until payment in full, and on the sums in orders (iii) and (iv) above at court rates from the date of this judgment until payment in full. vi. The plaintiffs shall have the costs of the suit as against the 1st, 2nd and 3rd defendants. DATED, SIGNED AND DELIVERED AT KISUMU THIS 24TH DAY OF SEPTEMBER 2026. E. K. WABWOTO JUDGE In the presence of; Mr. Odero for the Plaintiffs. Ms. Atieno for the 1st, 2nd and 3rd Defendants. N/A for the 4th and 5th Defendants. Court Assistant: Joanne Omondi. JUDGMENT ELC E005 OF 2023 23

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