Mumias Sugar Co. Ltd. v Kenya National Trading Corp. Ltd [2015] KEHC 3176 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEAL CASE NO. 15 OF 2011

MUMIAS SUGAR CO. LTD. …..................….......................... APPELLANT

VERSUS

KENYA NATIONAL TRADING CORP. LTD........................ RESPONDENT

[Being an appeal from the judgment of the  Bungoma  Chief  Magistrate's court [F. Kyambia (SRM) delivered on 27th January 2011 in Bungoma  Chief  Magistrate's court   civil  case no. 203 of 2007]

JUDGMENT

1. This appeal arises from the judgment in CMCC no. 203 of 2007     Kenya National Trading Corporation Ltd. Versus  Kenya   Railways Corporation and Mumias  Sugar Company Ltd.  In a judgment dated 27th January 2011 the trial court entered in favour of the plaintiff (now respondent) as against the 1st and 2nd defendant(now appellant) jointly and severally. It is that judgment that  has given rise to this appeal.

2. The appellant being aggrieved with the said judgment  preferred     this appeal on grounds,

1. That the learned trial magistrate erred both in law and fact in finding in favour of the respondent when the respondent  failed to  prove in court that it owned the piece of land in dispute and/or that any act of trespass had actually been committed against the respondent's property.

2. That the learned trial magistrate erred both in law and fact in making a finding in favour of the respondent when no proof of the appellant's  involvement  in the acts constituting he alleged trespass was tendered.

3. That the learned trial magistrate erred both in law and/or fact in proceeding  to condemn the appellant without due regard to its right of  easement over the land parcel in  question as recognized under the law.

4. That the honourable  trial magistrate erred in both law and/or fact in proceeding to deliver a judgment in favour of the respondent on the basis of an invalidly amended plaint.

5. That the honourable  trial magistrate erred in both law and  fact in failing to consider the appellant's defence and evidence on record and proceeding to  shift the burden of proof to the said appellant.

6. That the honourable  trial magistrate erred in both law and/or fact in proceeding to find and  award general damages of kshs. 157,101/= to the respondent when the same had not been strictly proved as is required under the law.

The appellant seeks for the  appeal to be  allowed and for the respondent to pay costs. The appeal was  vigorously opposed by the respondent.

3. Counsel for the rival  parties filed submissions  dated 8th March 2013 and  20th March 2014 respectively.  At the hearing of the appeal the appellant's counsel argued that the trial court treated the case as a simple matter of ownership.  He submitted that the  pits  giving rise to the issue before court were identified to it by Kenya Railway Corporation the 1st defendant in the trial court and therefore the issue for determination was between the respondent (plaintiff) . Further there was no proof that  the pits were indeed on the respondent's side, and neither  proof of trespass  as had been alleged.

In his submissions counsel for the appellant  also  took issue with the ammended defence in that it did not comply  with the law.   He argued also  that  special damages were neither pleaded nor proved.

4. In responding to the appeal, counsel for the respondent submitted that the respondent proved its case.  Further it was her case that grounds of appeal relied upon  did not  arise  from the trial court  pleadings and the judgment namely issues of easement and  amendment of plant in its written submissions the respondent submitted  that the issue of ownership was not  before the trial court.  Further that  there was admission  of trespass by both defendants in the trial court. The ammended plaint was consented to by parties and therefore no issue arises  and on issue of damages it was submitted  that the same was  proved.

5. This being the 1st appellate it has to consider the evidence afresh, analyze  and  evaluate the same  in order to  arrive at an independent opinion bearing in mind that the trial court heard evidence first hand.

This issue for the courts determination   was whether or not there was  an act of trespass on the  respondents land L.R. No. Bungoma Town/567 measuring 0. 225 of a hectare by appellant and  Kenya Railways Corporation if so  what  would be  the general and special damages.

6. In an amended plaint the  respondent claimed  that the appellant and the  co-defendant in  the suit  invaded and\or committed illegal acts of trespass and   commented   the same to their use jointly and severally  the suit  property being Bungoma Town/567 measuring  0. 225 hectares, further that the two  removed a fence that had been  erected thereon.  The respondent claimed general damages and special damages amounting to Kshs. 157,101/=  together with costs.

7. The defendants filed separate defences. The appellant herein on it's part denied the allegations and claimed to have  leased the said land from the 1st defendant. It specifically denied  acts of trespass or collusion as alleged.

8. The issue of ownership of  Bungoma Town/567 did not  arise. The respondent annexed a copy of  lease and a  duplicate of search as proof of ownership.  The said documents  were not challenged neither did the appellant lay any claims on the said land.

9. Were there acts of demolition of a fence and trespass to the said land?From the evidence of PW1 the appellant and the 1st defendant (in the trial court)  dug septic tanks on their property where molasseses  waste  was  emptied.  To access the pits the appellants again  passed through the said  land. Further that an initial fence erected was  removed necessitating erection  of a second fence to secure the property.  He claimed that the respondent incurred expenses amounting to  Kshs. 157,101/=.

In cross examination the witnesses stated that  their property shared a fence  with the property of the 1st defendant.

10. 1St defendant did not adduce any  evidence on its part. The 2nd appellant called  one witness.

DW1 who  stated that  the appellant did not  destroy any fence belonging to the respondent.  That the 1st defendant gave them storage facilities for  storage of molasseses. He confirmed that the respondent had  at some point complained usage of their  land but he maintained that the land belonged to the 1st defendant. He also confirmed that the respondent fenced their  land blocking passage of the  tanks.  He alleged that the 1st  defendant did  demolish a fence. On cross examination he admitted that there was molasseses waste being emitted from the tanks onto the suit property.  He further accepted that they had dug holes of  1m x 1m deep on the said land however his evidence  was they were not aware that land  belonged to the respondent.

11. From the evidence of the two witnesses mentioned about PW1 and PW2  it is obvious  that the appellant  herein with the arrangement  it had with the 1st defendant passed through the respondents land to where the septic tanks they had leased from the 1st defendant were.  These they did over time until the respondent  fenced off. That is an admission also that  an earlier fence was   destroyed.

The third admission  is  that the septic tanks emitted waste onto the respondent's land.

12. Having  the  admission on  DW1 in mind I  concur with the findings of the  trial court that the  respondent  proved  on a balance of probability that indeed  there were  acts of trespass by the appellant  and the 1st defendant on its land. I do also agree with the finding that  for the said reasons the appellant and the defendant (in the trial court) are liable jointly and severally.

In the premises therefore I do not wish to  disturb the findings  of special damages of Kshs. 157,101/=.

For the aforesaid reasons the appeal collapses. It is dismissed with costs.

Dated at Bungoma this 24th day of March 2015.

ALI-ARONI

JUDGE.