[2000] KEHC 423 (KLR)
The court found that the plaintiff had a possessory right to the land in question, as her evidence of cultivation and occupation since 1978 was uncontroverted. The defendant's entry and destruction of crops constituted trespass, as there was no lawful justification or evidence to the contrary. The court held that...
Source-derived case information.
- Citation
- [2000] KEHC 423 (KLR)
- Parties
- Plaintiff: Hannah Wairimu; Defendant: Wanjiru Muchiri
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 1324 of 2000
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Trespass to Land, Damages Assessment, Possessory Rights, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Wairimu
Plaintiff
Wanjiru Muchiri
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant trespassed on the plaintiff's land parcel No. LOC.16/KIGORO/881.
- 2 Whether the plaintiff had a possessory right to the land sufficient to maintain an action in trespass.
- 3 Whether the plaintiff is entitled to damages and injunctive relief for the alleged trespass.
Ratio Decidendi
The court found that the plaintiff had a possessory right to the land in question, as her evidence of cultivation and occupation since 1978 was uncontroverted. The defendant's entry and destruction of crops constituted trespass, as there was no lawful justification or evidence to the contrary. The court held that the plaintiff was entitled to damages for the destroyed crops (special damages) and for the trespass itself (general damages), even though special damages were not specifically pleaded, as they were proved and the court exercised discretion to allow them in the interests of substantial justice.
Court Disposition
Judgment for the plaintiff.
Orders
- The defendant shall pay the plaintiff KES 50,000 as special damages for destroyed crops.
- The defendant shall pay the plaintiff KES 150,000 as general damages for trespass.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 1324. 00
HANNAH WAIRIMU …………………………….PLAINTIFF VERSUS WANJIRU MUCHIRI ……………………………DEFENDANT
JUDGMENT
The Plaintiff has sued the Defendant herein for damages in Trespass and permanent injunction to restrain the said Defendants her agents and or employees from trespassing on Land parcel No. LOC. 16/KIGORO/881 In her evidence the plaintiff says that she had always cultivated and raised crops on LR NO.LOC.16/KIGORO/881 since 1978. She says her father owned LR NO.LOC 16/KIGORO/213 which was eventually subdivided into two plots being LOC.16/KIGORO/880 and 881
The land extracts produced shows that Plot No.881 is registered in the name of GRACE MUGURE GUKUI her stepmother then later transferred to STANLEY MUCHIRI MWANGI a person she does not know.
She says that she planted 2000 bushes of tea on that land which in April 2000 the Defendant entered into the same land cut all trees and tea bushes therein . She used to get KShs.800/= p.m. and an annual bonus of 17,000/= p.a. from the tea. She says the destroyed tea amounted to KShs.50,000/= which she claims from the defendant.
From this evidence I find that the plaintiff had possessory right to this land as this claim is not controverted. The only question is whether there was trespass.
In law trespass to land is an entry in the possession of the plaintiff or remaining upon plaintiff’s land without lawful justification. The plaintiff must have had present right to possession which I think in this case without any controverting evidence of PW1 I accept as having been so. Normally a licencee or a mere lodger cannot maintain an action in trespass.
The action of trespass and the damage arising from it entitles plaintiff to damages to put the plaintiff where he would have been had the damage not occurred.
I therefore award damages in the amount of kshs.50,000/= as value of the damage but it must be borne in mind that this was actually in form of special damages which ought to have been specifically pleaded and proved. In this case it was proved but not specifically pleaded. I have however used my discretion and vestigial powers to allow it for purposes of substantial justice.
As for general damages for trespass, I award 150,000/=. There will be a total award of kshs.200,000/= plus costs and interest.
Delivered this 20th day of March 2000
A. I. HAYANGA
JUDGE
Read to Mr. Juma for plaintiff
N/A for defendant
A. I. HAYANGA
JUDGE