James Mulwa Malunda,Charles Mutisya Kyenze & Elizabeth Mbaika Nzangi v National Water Conservation & Pipeline Corporation [2018] KEELC 3424 (KLR)

REPUBLIC  OF KENYA

IN THE  ENVIRONMENT AND  LAND COURT  AT MAKUENI

ELC  NO 283 OF 2017

JAMES  MULWA MALUNDA.................................................................................1ST PLAINTIFF

CHARLES  MUTISYA KYENZE..........................................................................2ND  PLAINTIFF

ELIZABETH  MBAIKA NZANGI.........................................................................3RD PLAINTIFF

VERSUS

NATIONAL  WATER  CONSERVATION & PIPELINE  CORPORATION.........DEFENDANT

JUDGMENT

1)  James  Mulwa  Malunda  who is the first plaintiff herein is an accountant by profession. He also owns land parcel numbers Sultan Hamud  188 and 260 Situated in Sultan Hamud in Makueni County.

2)  The second plaintiff is an auditor and owner of Plot no. 189. Both claim that the defendant through its servants, workmen and agents wrongfully entered into the three properties and thereafter proceeded to erect a fence  around them thereby denying them  access and the right to use the said properties.

3)  By their plaint dated 23rd May, 2017 and filed in court on the 24th May, 2017 the plaintiffs pray for judgment against the defendant for;

a)  An injunction as pleaded above

b) Damages for trespass

c)  Interest  thereon

d) Costs of this suit

e)  Any other relief the court deems fit to grant

4)  On the 26th May, 2017, the defendant  was served with summons to enter appearance, plaint, verifying affidavit, plaintiff’s witness’s statements and list of documents but it  failed  to enter appearance  and file its defence within the prescribed period.

5)  Consequently, on the 1st November, 2017 the court directed that this matter do proceed as undefended suit.

6)  The case came up for hearing on the 16th January, 2018 where the first  plaintiff  adopted his statement dated 23rd May, 2017 and  his  list of documents as his evidence.

7)  His evidence was that on the 4th March, 2016 the defendant erected a fence around his properties number Sultan Hamud188 and 260.  He went on to say that  the defendant  did so through its servants, workmen and agents, an act that he termed as wrongful. He  added that as a result  of the  fence that had been  erected by the defendant, he was denied  access and the right  to use  and enjoy the properties in question.

8)  He prays that he be awarded damages for  wrongful entry by the defendant into his  properties and an injunction to restrain it, its servants, workman and agents from entering on the said property, or  from destroying  or other wise injuring   the hedge or fence thereof or from erecting or causing to be erected a fence thereof, or from  in any way interfering with his   use and enjoyment of the suit property.

9)  The second  plaintiff  Charles Mutisya  Kenze too  adopted  his  witness statement dated 25th May, 2017.  He said that he owns  plot  number 189 which he acquired in June, 1996.  He added that his plot is adjacent to those of the first plaintiff.  He said that he acquired his property from the  Ministry of Lands  and  the Commissioner of Lands and that he followed all the relevant  procedures to acquire it.

10)  The plaintiffs’ counsel in his  written submissions dated 8th March, 2018 and filed in court on 9th March, 2015 termed the defendant’s actions  as trespass because it constituted an “unjustifiable  intrusion  by one person upon the land in  the possession of another”The  counsel relies on the case of Mwita Merengo Vs Joseph Tunei Marwa   & 2 others  [2012] eKLR and Clerk and Lindel on Torts 7th Edition  17-07.

11)  The counsel further  submitted that  the plaintiffs are entitled  to mesne profits from the date when the defendant trespassed up to the time  the  defendant will  cease to trespass.

12) The counsel framed three issues for determination, namely;

1.  Did the defendant trespass into the suit land?

2.  Did the defendant  unlawfully enter the plaintiffs’ said properties and thereafter proceeded  to erect a fence  around the said properties thereby denying the plaintiffs access and the right to use and enjoyment of the said property?

3.  What amount (if any) is  payable as damages for such excavation?

13) On the first and the second issues, the plaintiffs’counsel submitted that the plaintiffs have on a balance of probabilities  shown that the defendant entered into their land without their  consent.

14)  And  on the third issue, the counsel submitted that trespass is actionable  per say without  proof of damage.

15) Regarding computation of damages, the counsel referred to Halsbury’s 4th ed, Vol 45, at para 26,1503 which  provides as follows;

a)  If the  plaintiff  proves the 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 his loss.

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

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

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

16)The counsel  further referred  to the case of Duncan Ndegwa  Vs  Kenya Pipeline in HCC no. 2577 of 1990where it was held;

“The  general  principle  as regards the measure  of damages to be awarded  in cases of trespass to land where damage  has been occasioned to the land is the amount of diminution in value or the cost of reinstatement of  the land.  The overriding principles is to put  the claimant in the position he was prior to the   infliction of the harm.”

17)  The counsel  went on to submit that even though  there is no actual  damage to the  plaintiff’s land arising  from the act of the defendant, the same falls within the category of an oppressive, arbitrary or unconstitutional  trespass by a government official or where the defendant cynically disregards the right of the plaintiff  in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded. The plaintiffs’ counsel cited Clerk & Lindell on Torts (Supra) at page 874 para 17-67.

18) The counsel further relies in the case of Abdulhamid Ebrahim  Ahmed Vs Municipal Counsel of Mombasa [2004] eKLR where Maraga J, as he then was, stated thus regarding  exemplary  damages,

“Exemplary  damages  on the other  hand  are damages that are punitive. They are awarded to punish the defendant  and vindicate the strength  of the law.  They are awarded in actions in tort, and only in three categories of cases. The first category relates to the oppressive, arbitrary or unconstitutional actions of servants of  government.  The other two categories are where the defendant’s conduct is calculated to earn him profit and the third one is where exemplary damages are expressly authorized by statute.”

19) The counsel  pointed out that the plaintiffs have demonstrated that they fall within the category  that requires punitive damages against   the defendant be made and opined that Kshs. 2,000,000 per parcel  would suffice. The counsel went on to  submit  that in any event the tort of  trespass is one on which is actionable without  proof of any damage and referred to the case of  Anthony Kolani Mwanya Vs Mwaka Omar Ali [2011] eKLR where the plaintiff was awarded Kshs. 50,000 general  damages for trespass.  The counsel further cited the case  of James Njeru Vs Ericson Kenya Ltd [2015]eKLRwhere the plaintiff was awarded Kshs. 50,000 for trenches   that had been dug in his  land. The counsel also cited the case of  Philip Aluchio Vs Crispine Ngayo [2014] eKLR where E. Obaga J helds  as follows;

“ …. The  plaintiff  is entitled to general damages  for trespass. The issue which arises is as to what is the measure of such damage. It has been held that the measure of damages for trespass is the difference in the value of the  plaintiff’s property immediately after  the  trespass  or  the costs of restoration, whichever is less…..

The plaintiff  herein  did not  adduce any evidence as to the state of his property before and after the trespass.  It therefore becomes difficult to assess general damages for trespass…”

The learned  judge  proceeded to award  a normal  figure of 100,000.

20) Finally, the counsel cited the case of Nakuru Industries LTD Vs S.S Mehta & sons [2016] eKLRwhere the plaintiff was awarded Kshs. 500,000 for trespass.

21) In the case before me, it is clear that the plaintiffs have been prevented from accessing their property by the actions of the defendant who has fenced off their parcels of land.  In light of the title documents that  the plaintiffs produced in evidence,  I am convinced that they have satisfied this court on a balance of  probabilities that they have a cause of action against the defendant.

22)  In the circumstances, I will assess a nominal figure of Kshs. 100,000 per parcel of land.

23) From the foregoing, I hereby proceed  to enter judgement  for plaintiffs and against the defendants as hereunder;

a.  Injunction as pleaded  in the plaint

b.  Kshs.  100,000 per parcel

c.  interest of the suit

d.  cost of the suit

Signed, dated and delivered at Makuenithis  24th day of April, 2018

MBOGO C.G

JUDGE

In the presence of;

Mr.   Mulei holding brief for Kisaka for the plaintiff

Mr.  Kwemboi Court Assistant

MBOGO C.G,

JUDGE

24/4/2018