https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11317

Crown Paints v Punjab Engineering Works Ltd (Civil Appeal E185 of 2025) [2026] KEHC 11317 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11317 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E185 of 2025 D Mburu, J July 23, 2026 Between Crown Paints Appellant and Punjab Engineering Works Limited Respondent (Being an appeal from the decision and orders of the Honourable Court, Hon D Milimu delivered on 16th June 2025 at Thika in CMCC/E065 of 2021, Punjab Engineering Works Ltd versus Crown Paints Kenya Limited) Judgment Introduction 1.The respondent filed a claim in the lower court vide a plaint dated 2nd November 2020. The respondent claimed that it was the registered owner of the land known as plot No. Thika Municipality Block 8/180 situated in Thika Town. The respondent claimed that the appellant, through their agents without the respondent’s consent, painted the front of the respondent’s building for advertisement purposes and gained undue profits thereof. 2.The respondent sought the following orders: a declaration that the appellant trespassed, general damages, compensatory damages in the sum of Kshs 1,438,150/= and costs plus interest at court rate. 3.In response, the appellant filed a statement of defence dated 11th May 2021. The appellant denied the respondent’s claim and urged the court to dismiss the suit with costs. 4.The respondent filed a reply to the statement of defence and stated that the appellant’s defence was a mere denial and ought to be struck out to save judicial time. The matter proceeded for full hearing. 5.PW-1 testified on oath and adopted his witness statement and documents as evidence in chief. He stated that the respondent was the registered owner of the suit property. He stated that the appellants illegally painted Crown paints on his building. 6.The appellant neither attended court on the hearing date nor called any evidence. The trail was therefore closed without any evidence from the appellant. The court directed that the parties file written submissions. 7.The respondent filed written submissions dated 12th November 2024. The respondent submitted that the appellant’s action of painting their building without consent amounted to trespass. Moreover, the respondent submitted that the unauthorized commercial advertisement by the appellant amounted to violation of their constitutional right to privacy. 8.The respondent submitted that they were entitled to compensation for the unauthorized use of their property. The respondent cited the case of Nyayo Embakasi Association vs Kenya Power and Lighting Company Limited (2019) eKLR. 9.The respondent urged the court to award general and compensatory damages of Kshs 1,438,150/=. The respondent urged the court to enter judgment in its favour as outlined in the plaint. 10.The appellant filed written submissions dated 1st June 2025. The appellant submitted that the respondent was not entitled to the special damages since they did not provide any documentary evidence to support their assertion. In this regard, they cited the case of Hahn vs Singh, where the court held that special damages must be pleaded and proved. 11.The appellant submitted that an award of Kshs 50,000/= as general damages was sufficient in the present circumstances. The appellant urged the court to dismiss the claim for special damages and award general damages at Kshs 50,000/=. 12.The court delivered a judgment in favour of the respondent for the award of Kshs 3,500,000/= as general damages for trespass and costs of the suit. The Appeal 13.Being dissatisfied with the judgment, the appellant filed the present appeal seeking the following reliefs:i.That the judgment made in Thika Chief Magistrate Court in Civil Suit E065 of 2021, Punjab Engineering Works Limited vs Crown Paints Limited be set aside and the matter be remitted to the High Court to hear and determine the same matter afresh.ii.That the orders issued on 16th June 2025 by the trial court be set aside. 14.The grounds outlined in the memorandum of appeal are:i.That the magistrate erred by making an unjustified assumption that the appellant continued to derive benefit from the alleged trespass up to the date of judgment.ii.That the magistrate erred by awarding Kshs 3,500,000/= as compensation, exceeding the bounds of pleadings and principles governing the award of damages.iii.That the magistrate erred in awarding excessive, arbitrary damages against governing legal precedent. Proceedings at the High Court 15.The court directed that the appeal be canvassed by way of written submissions. 16.The appellant filed submissions dated 20th February 2026. The appellant submitted that the respondent did not tender any evidence on the special damages sought of Kshs 1,438,150/=. The appellant submitted that the court erred by awarding the special damages contrary to established legal principles on the award of special damages. 17.The appellant submitted that the award of general damages in the sum of Kshs 2,061,850/= was not measured from prevailing jurisprudence. The appellant cited the case of Philip Aluchio vs Crispinus Ngayo (2014) eKLR. In the above matter, the court held that the measure for damages for trespass is the value difference in the value of the property before trespass and the cost of restoration. 18.The appellant submitted that the damages awarded was erroneously on the higher side. The appellant submitted that the respondent ought to be awarded nominal damages of kshs 50,000/=. 19.The appellant submitted that they did not make profit from the paintings on the wall. The appellant submitted that they returned the respondent's property to its initial position and that the magistrate erred by finding that the appellant continued to derive profits from the paintings. 20.The appellant urged the court to reduce the damages awarded and cited the case of Capital Fish Limited vs Kenya Power and Lighting Company Limited (2016) eKLR. In this case, the court held that a party alleging loss and damage has the burden to lead evidence in support of the alleged loss and damage. 21.The respondents filed submissions dated 27th March 2026. The respondent submitted that the appeal had been overtaken by events and rendered nugatory. The respondent submitted that the appellant had not obtained an order of stay of the judgment and, as such had acquiscenced themselves with the judgment of the court. The respondent submitted that the appellant had partially settled the decretal amount. 22.The respondent cited the case of Attorney General vs Okiya Omtatah (2020) eKLR, where the court held that an appellate court will decline jurisdiction where a matter has been rendered otiose. 23.The respondent submitted that the appellant’s non-participation in trial by failing to appear and also file submissions cannot be a basis for delaying execution of a valid decree issued by a court of competent jurisdiction. 24.The respondent submitted that an appellate court can only interfere with an award for damages where it is proved that the award was based on wrong principles and that the award is manifestly excessive or inadequate. The respondent submitted that the appellant had not established the two grounds and that the appeal ought to be dismissed with costs. 25.The respondent submitted that the appellant’s proposal of Kshs 50,000/= was devoid of any legal and evidential foundation and ought to be dismissed. 26.The respondent urged the court to dismiss the appeal with costs and uphold the trial court’s judgment. Analysis And Determination 27.I have carefully considered this memorandum of appeal, the record of proceedings before the lower court, as well as the rival written submissions filed by the parties. 28.This court is sitting as a first appellate court. It is settled law that the duty of the first appellate court is to re-evaluate the evidence adduced in the subordinate court, both on points of law and fact, and to arrive at its own findings and conclusions. 29.In the matter of Gitobu Imanyara v Attorney General (2016) eKLR, the court held that:“An appeal to this court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. This court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.’’ 30.The issue arising for determination before this court is:i.Whether the court erred by awarding the respondent damages of Kshs 3,500,000?ii.Whether the magistrate erred by finding that the appellant continued to derive commercial benefit from the trespass?iii.Whether the appellant is entitled to the reliefs sought? 31.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 offence.” 32.Therefore, trespass is an intrusion into the land of another person who is in possession and ownership. The respondent submitted that he is the owner of the suit property and produced a certificate of title with regard to the suit property proving that she was the registered owner. 33.Section 26 (1) of the Land Registration Act 2012 states that the certificate of title issued by the registrar upon registration is prima facie evidence that the proprietor is the registered owner unless the title is challenged on fraud, misrepresentation or illegality. 34.The respondent presented a certificate of title evidencing ownership and photographs showing that the appellant had painted their property. 35.In light of the foregoing, I find that the respondent is the registered owner of the suit property and that the appellant's actions of painting the suit property without their consent amount to trespass. As such, I agree with the trial court’s finding. 36.In the case of Bhagwani Singh vs National Housing Corporation (2017) eKLR, the court held that it is at the discretion of the court to award reasonable damages in trespass claims by taking into account factors such as: the length of time of the illegal occupation, nature of trespass and the actions of the trespasser on the property. It is important to note that once a claim of trespass has been established, the claimant need not prove the specific loss suffered for damages to be awarded. 37.In the case of Kemfro Africa Limited t/a Meru Express Services vs Lubia & another eKLR, the court of appeal held that an appellate court will not disturb an award of damages by the trial court unless it is satisfied that the trial court proceeded on the wrong principle or that the award is manifestly excessive or inadequate. 38.Therefore, for this court to vary the damages awarded to the respondent, the appellant has the burden of proof to establish that the trial magistrate’s findings were informed by application of a wrong principle or were manifestly high. 39.The appellant submits that the award was excessively high and that an award of Kshs 50,000/ would suffice. Moreover, the appellant submitted that the magistrate erred by holding that they continued to derive commercial benefit. However, the appellant did not submit any evidence to rebut the respondent’s assertion at the trial. As such, the respondent’s evidence remains uncontroverted. 40.The appellant submitted that the magistrate erred in awarding special damages that were not pleaded and proven. I find this to be an assumption since the trial magistrate awarded damages as a lump sum without tabulation as special damages. (See page 36 of the record of appeal) 41.For the above reasons, I find that the appellant has not substantiated that the trial magistrate applied wrong principles or awarded excessively high damages. As such, I find that the damages awarded of Kshs 3,500,000/= were reasonable, taking into account the nature of the trespass, infringement of the right to property, the nature of the property which was a commercial property and the conduct of the appellant during trial. 42.In conclusion, I find that the appeal lacks merit and proceed to dismiss it with costs. DATED, DELIVERED AND SIGNED AT NAIROBI THIS 23RD DAY OF JULY 2026.DAVID MBURUJUDGEIn the presence of:Mr. Kofuna for the AppellantMr. Bruno for the RespondentKalondu - Court Assistant