[2003] KEHC 134 (KLR)
The appellate court upheld the trial magistrate's findings that the respondent was the owner of plot No.1131 and that the appellant had trespassed onto this land. The boundaries were clearly established by official maps, and the magistrate was entitled to rely on the evidence and assess witness credibility. There...
Source-derived case information.
- Citation
- [2003] KEHC 134 (KLR)
- Parties
- Appellant: Patrick Njui Kihumba; Respondent: Stanely Muriuki Murage
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 75 of 2001
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Trespass to Land, Boundary Disputes, General Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Njui Kihumba
Appellant
Stanely Muriuki Murage
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant trespassed onto the respondent's land.
- 2 Whether the award of general damages for trespass was justified.
Ratio Decidendi
The appellate court upheld the trial magistrate's findings that the respondent was the owner of plot No.1131 and that the appellant had trespassed onto this land. The boundaries were clearly established by official maps, and the magistrate was entitled to rely on the evidence and assess witness credibility. There was no misdirection in the findings of fact, and the award of general damages for trespass was within the trial court's discretion. The appellate court found no basis to interfere with the judgment or the quantum of damages awarded.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICIVIL APPEALL NO.75 OF 2001
PATRICK NJUI KIHUMBA ……….………..…………..………..…….APPELLANT VERSUS STANELY MURIUKI MURAGE ……..……….……………………… RESPODENT
JUDGMENT
The Appellant appeals against the decision of the CM Nairobi in Civil Case No.4045 of 200 in which she gave Judgment for the Respondent herein as prayed in the plaint and general damages of Shs.50,000/=.
The simple issue in the case was whether or not the Appellant had trespassed into the Respondent’s land. The dispute arose out of where the boundaries to the respective parties land was.
The Learned Magistrate found as a fact that the Plaintiff was the owner of plot No.1131, which was adjacent to the Appellants plot No.1129. The boundaries were shown clearly on a map from Survey of Kenya produced in evidence. Although the second defence witness had said the Plaintiff/Respondent would stop encroaching on the Appellants land the Magistrate found him to be biased. The magistrate had the advantage of seeing the witness and evaluating their creditability. The Magistrate was entitled on the evidence before her and indeed was bound to make findings of fact. I can see nothing in the Judgment in the nature of a misdirection as to the facts and her finding that the Appellant had trespassed on the Respondent’s land.
With regard to damages, trespass is a tort for which the court will award general damages. Damages are within the discretion of the court hearing the matter and an appeal court will not interfere unless the damages are manifestly too high or too low. In this case I cannot say the damages awarded are too high.
In the result I dismiss this appeal with costs to the Respondent.
Dated and delivered at Nairobi this 25th November 2003 P.J. RANSLEY JUDGE