Caroline Wanyua Mwendwa & Alphonce Mwendwa Nyalita v China Road and Bridge Corporation (Kenya) [2018] KEELC 2786 (KLR)

REPUBLIC OF KENYA

IN THE  ENVIRONMENT AND LAND COURT  AT MAKUENI

ELC NO. 146  OF  2017

FORMERLY ELC NO.  29 OF  2016 – MACHAKOS

CAROLINE WANYUA  MWENDWA ...........................................1ST PLAINTIFF

ALPHONCE MWENDWA NYALITA .......................................... 2ND PLAINTIFF

VERSUS

CHINA ROAD AND BRIDGE  CORPORATION (KENYA).........DEFENDANT

JUDGMENT

1) This   suit   was commenced   by way  of  a plaint dated  18th May, 2016 and filed in court on the 19th   May, 2016 where the plaintiffs pray for judgment  against the defendant for :-

a. Permanent  injunction against  the defendant, his servants, agents, employees and all those  claiming through or under the defendants restraining them from  trespassing  on the plaintiffs land.

b. Permanent  injunction against the defendant, his servants, agents, employees and all  those  claiming through or under  the defendants restraining them from harvesting soil from the plaintiffs land.

c. Damages for trespass to land, mesne profit, cost of this suit and interest.

2) The  plaintiff’s claim is denied by the defendant vide it’s statement of defence dated  22nd July, 2016 and filed in court on  2nd  August, 2016.

3) The matter came  up for  hearing on 20th  December, 2017.  The  defendant though  served with the hearing  notice did not  attend court as can be seen from the affidavit  of service  sworn at Nairobi on the 19th December, 2017.

4) The  plaintiff’s  evidence was that his land is in Emali  in Makueni County.  He went on to say that the size of  the land   is 10 acres. According to him, the defendant excavated and took soil from part of his land leaving a 5 to 6 metres  high wall that needs to be fixed to ensure that the land remains in the way it was before the excavation.  The plaintiff went on to say that he had not allowed the defendant to excavate on his land and pointed out that  the defendant was excavating  in a neighbouring  land when all this  occurred.   He said that when he enquired from the neighbour, he learnt that  the neighbour had allowed them to do so.

5) The plaintiff further told the court that  he warned  the defendant to cease excavation on his land but it  did not do  so.  The plaintiff said that the excavation left a hole of about  200 metres and if  he was  to fence  his land, the fencing posts would be left hanging in the air.

6) The plaintiff  went on to say that he intended to carry out farming on the land that the defendant trespassed into.  He added that he bought  the  land in December, 2014 from one Samuel Kyama  Mutui and one Denis Kilonzo  Mutui  and proceeded  to produce land  sale agreement as PEX No. 1.

7) The plaintiff further said that he had a business  plan for his farm which  he intended to  name as Emasun Farm Ltd.  He produced the business  plan as PEx No.  2. He disclosed that the plan which was to run  from 2014 to  2019 has detail of what he intended to do on  the  farm.  According to the plan,  the projected  profits for the year  2014  were Kshs. 47,268,000 rising to Kshs.  257,000,000  in 2019.

8) Regarding  the damage  occasioned to his farm, the plaintiff produced  a report prepared by Francis Kariuki Kiiru who is a Quantity Surveyor as PEX No. 4. He said   that the report  indicates  that  the  filling  of the suit ought to have been  done and also recommended  gabion cascade along the  200 metre area that was  excavated together with the planting of the local vegetation  and selective soil back filling with imported vegetable, soil and chain link fencing with timber posts at a total cost of Kshs. 24,503, 376.

9) The  plaintiff produced  demand letter  for  Kshs. 57,000,000 being  the amount he would have spent to put the land back to previous position including the loss incurred  as PEX No. 5.

According  to the  plaintiff, the defendant trespassed into his land  contrary  to what it claims and asserted that  the lease agreement that  the defendant had with one David did not  extend to the land that he bought.  Finally the plaintiff produced the lease agreement as PEX no.  6.

10)  Prof. Kiama Wanguai for the plaintiff filed his written submissions on the 8th February, 2018 the same being  dated 7th February, 2018. In his submissions, the plaintiff’s counsel submitted  that the  defence lacks merit, a sham and ought to be dismissed.

11)  The counsel urged the court to find that the plaintiffs  have discharged the burden of proof in this matter on a balance of probabilities  and grant the prayers sought.

12)  From the evidence on record, it is clear that the plaintiffs are yet  to be registered as the proprietors of their 10 acres of land. They however have a sale agreement (PEX No. 5) between themselves and Samuel Kyama Mutui and Denis Kilonzo  Mutui and as such, they  have proprietary interest in the suit land.

13)   From the above, the issue is, are the plaintiffs  entitled to be awarded   the profits they would have earned had they  operationalised their business plan (PEX No.2)?

Should  they also be awarded Kshs.  24, 503,376 which is the amount  for restoring the suit premises to it’s original state?

14)   It is clear that the sums of money that the first plaintiff in his evidence said that he would have earned over the period of 2014 to 2019 is not pleaded  in the plaint.  Equally, the sum of Kshs.  24,503,376 is not pleaded.  These are essentially special damages.  Parties are bound their own pleadings and in my view, the plaintiff are not entitled to special damages.

15)  I am  satisfied that there is evidence to show that the defendant did trespass into the plaintiffs’ land.  There is  also evidence to  show  that the defendant did excavate  on the said land and I am in agreement with the  plaintiffs’ counsel that the defence by the  defendant lacks merit.

16)  In the case of Kenya Hotel  Investments  Limited Vs Williesden Investiments Ltd [2009] eKLR, the Court of Appeal cited the persuasive  authorities of Inverugie Investments Vs Hackell(Lord Lloyd) [1995] 3 ALL ER 842 and Stroud’s Judicial Dictionary 4th Edition Volume  3 and held that;

“… once the learned judge made the award under  the subhead “mesne profits” there was no justification  for him awarding further Kshs. 10,000,000 under the subhead “trespass” since both mean  one and the same thing”  In my judgement, the plaintiffs  are  not   entitled  to both  mesne profits  and  damages for trespass. They  can only  have one or the other but not both.

17)   In Halsbury  Laws of England  4th Ed Vol. 45 at para 26,1503 it is  provided as follows:-

a) If the plaintiff  proves trespass he is entitled to recover nominal damages even if he has not suffered any actual loss.

b) If the trespass has caused the plaintiff actual damage, he is entitled  to receive such amount as will  compensate him for the loss

c) Where the defendant  has made use of  the  plaintiffs land, the plaintiff is entitled to receive by way of damages such sum as would reasonably be paid  for that

d) Where there is an oppressive, arbitrary or unconstitutional trespass by a  government official or where the defendant cynically  disregards the rights of the plaintiff in the land with the object making a  gain by his unlawful  conduct, exemplary damages may be awarded.

e) If the trespass is accompanied  by aggravating  circumstance, which  do not allow an award  of exemplary damages the general damages may be awarded.

18)  From the evidence on record, it is clear that  there was  excavation  and taking of soil from the plaintiffs’ land thereby leaving a pit. The trespass by  the defendant   has caused  the plaintiffs actual damage.  It is also clear that the defendant has  made use of the  plaintiffs’ land.  In my view, the sum of Kshs. 10,000,000 would be adequate compensation for the plaintiffs.

19)  Arising  from the foregoing , I am satisfied that the plaintiffs have on a balance  of probabilities satisfied  this  court that they have a cause of action against the defendant.

20)   In the circumstance, I proceed to enter judgement  for the plaintiffs and against the defendants for:-

a. Permanent  injunction against  the defendant, his servants, agents, employees and all those  claiming through or under the defendants restraining them from  trespassing  on the plaintiffs land.

b. Permanent  injunction against the defendant, his servants, agents, employees and all  those  claiming through or under  the defendants restraining them from harvesting soil from the plaintiffs land.

c. Kshs. 10,000,000 being  damages for trespass.

d. Costs  and interest of the suit.

Signed, dated and  delivered  at Makueni this  22nd day of  June, 2018

MBOGO C.G

JUDGE

In the  presence of ;

1. Mr.  Kwemboi Court Assistant

No appearance  for the plaintiffs  and the defendants.

MBOGO C.G, JUDGE

22/6/2018