[2025] KEHC 8119 (KLR)

Wanderi v Safaricom Limited (Civil Appeal E018 of 2024) [2025] KEHC 8119 (KLR) (12 June 2025) (Judgment)

Neutral citation: [2025] KEHC 8119 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E018 of 2024

SM Githinji, J

June 12, 2025

Between

Bernard Nderitu Wanderi

Appellant

and

Safaricom Limited

Respondent

(Being an Appeal from the Judgment of Hon. L. N. Juma (SRM) in Meru CMCC No. 122 of 2019 delivered on 25th of October, 2022)

Judgment

1. This Appeal arises from the judgment of the learned Senior Resident Magistrate Hon. L. N. Juma delivered on 25. 10. 2022 in Meru Civil Suit No. 122 of 2019 wherein judgment was entered in the following terms;a.General Damages Ksh. 50,000b.Special Damages Ksh. 6,750

2. Aggrieved by the said Judgment, the Appellant set forth the following grounds in the Memorandum of appeal dated 6th February, 2024;1. The Honorable Court erred in law and fact by failing to pronounce herself on the question of whether the plaintiff ought to be granted an injunction order compelling the defendant to remove their posts and installations on the appellant’s land or in the alternative compensation for the defendant’s use of part of Land Parcel No. Ntima/Igoki/6999. 2.The Honorable Court erred in law and fact by disregarding the valuer’s report hence coming to a wrong conclusion.3. The Honorable Magistrate erred in law and fact by awarding Kshs. 50,000/= to the plaintiff for general damages against the nature of damages suffered by the plaintiff as a result of the defendant’s encroachment and trespass on the plaintiff’s land.4. The Honorable Court erred in law and fact by disregarding the plaintiffs’ testimony hence coming to a wrong conclusion.5. The Honorable Magistrate erred in law and fact when she proceeded on wrong principles as she misapprehended the evidence in some material aspect and so arrived at a wrong conclusion.6. The Honorable Magistrate erred in law and fact when she proceeded on wrong principles and wrong precedents with completely different facts from the appellant’s case.7. The Honorable Magistrate erred in law and fact by failing to recognize the valuation report produced in evidence as documentary evidence to corroborate the damages suffered by the appellant as a result of the trespass and encroachment on the appellant’s land.8. The Honorable Magistrate erred in law and fact by failing to recognize the evidence by the appellant and his witness, being the valuer on the damage done to the appellant’s land.9. The learned Magistrate erred in law and fact by failing to properly scrutinize and evaluate the evidence tendered by the Appellant and wrongly related the same to a wrong case law and thereby failed to arrive at a fair and reasonable assessment on the issue of quantum of general damages and compensation to the appellant.10. The learned trial magistrate erred in law and fact in disregarding the appellant’s testimony and evidence and the testimony of pw2 who is a doctor and which testimony corroborated the appellant’s claim and the appellant’s documentary evidence.11. The learned trial magistrate erred in law and fact in failing to appreciate sufficiently or at all the judicial nature of the case that was before her by awarding general damages of Kshs. 50,000/= when valuation of the same was done and pleaded.12. The magistrate erred in law and fact in making an award on quantum which is too low and not guided by the laws of natural justice and or commensurate with the damages suffered by the appellant.13. The award on general damages was against the weight of the evidence before the court and was without any consideration to the pleading, the evidence before court and the submissions of the plaintiff/appellant’s counsel whilst failing to take into account the apportionment of Kshs. 50,000/= on quantum which did not relate to damages as per the valuer’s report produced in court.14. The magistrate erred in law and fact in her general approach to quantum of damages.

Evidence at trial 3. PW1 Bernard Nderitu, the Appellant herein adopted his statement dated 13/5/2013 as his evidence in chief and produced the list of documents together with the supplementary list of documents as exhibits. He told the court that the Respondent put up a Fibre Optic Cable on his land, without his consent. He has been unable to use the land due to the two manholes the Respondent has set up on his land, although they sealed one up. He produced the valuer’s report and prayed for judgment as per the plaint. He could not cultivate on the land as he used to or fence it because of the manhole and the fibre optic.

4. PW2 Edwin Mutwiri Msogo, a registered and practicing valuer conducted a valuation on L.R No. Ntima/Igoki/9966, which is registered in the name of Bernard Nderitu. He found that the Respondent’s cables encroached on the Appellant’s land and hindered developments thereon, making it impossible for any construction to take place. He assessed the value of the compensation for the affected area of 0. 005 Hectares to be Ksh. 575,000, which was arrived at through comparison with other properties within the neighbourhood, and produced the valuation report as exhibit 7. He confirmed that the land bordered 2 major roads, and he relied on the surveyor’s report in his findings.

5. DW1 David Mganga Njuguna, an Engineer at Maro department testified that when he visited the site, there was a KURA beacon on the side of the main highway, which demarcated the KURA site and the Appellant’s land. The Optic Cable and the manhole were placed aerially on the KURA site but assisted with poles. They sought and obtained permission from Meru County Government where they paid Ksh. 450,000 before commencing the works. He produced the powerpoint paginated at page 95 D, letter dated 26/10/2018 and building plan fees for Ksh. 450,000 as exhibits 1 – 3. The physical planner certified that what was done was within the right of way space, and thus no encroachment on the Appellant’s land was done. The county government’s approval negated the need to engage and involve the Appellant.

6. DW2 Paul Mwangi, a Site Acquisition Manager at Adrian Kenya Limited, testified that they were contracted by the Respondent to put fibre on the way leave. After obtaining a permit from the County Government of Meru, they made payment and received letters from KENHA and KURA confirming that the fibre was on the way leave. The 0. 005 acres in dispute is within the way leave, and the site to put the cable was shown to them by the county planner. Way leave is set aside for infrastructure, water and power communication, and the beacon on the side of Appellant’s land belonged to KURA.

Submissions 7. The Appellant through the firm of Vivian Loice Aketch & Co. Advocates filed submissions dated 30th January, 2025, blaming the Respondent for trespass and unlawful installation, which infringed on his right to peaceful occupation and use of the property. Counsel urged the court to find that the special damages of Ksh. 635,650 were specifically pleaded and proved by way of receipts. The trial court was faulted for failing to properly scrutinize and evaluate the evidence tendered thus arriving at an erroneous award, and relied on Kenya Power & Lighting Co. Ltd v Fleetwood Enterprises Ltd (2017) eKLR and Duncan Nderitu Ndegwa v KP & LC Limited & Another (2013) eKLR. Counsel faulted the trial court for disregarding the valuation report which was produced without any objection, and urged the court to allow the appeal with costs.

8. The Respondent through the firm of Meritad Law Africa LLP filed submissions dated 22nd April 2025 citing Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment) on the first appellate court’s mandate. Counsel submitted that the Ksh. 575,000 on the valuer’s report was clearly exaggerated for want of proof on how the same had been arrived at. Counsel insisted that the fibre installation works were conducted within the way leave of the road reserve, and not on the Appellant’s land, thus there was no trespass. It was submitted that a site visit was indeed undertaken which established that only a small sunken tank had encroached on the land and the fibre cables were not on the ground as alleged by the Appellant. The Appellant was faulted for failing to meet the threshold for an award of damages for trespass on account of his failure to adduce evidence on the difference in value of the suit land before and after the alleged trespass. The trial court was lauded for compassionately awarding Ksh. 50,000 as general damages for trespass and Ksh. 6,750 as special damages. Counsel relied on Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited (2019) eKLR, Joseph Kipchirchir Koech v Philip Cheruiyot Sang (2018) eKLR, Philip Ayaya Aluchuo v Chrispinus Ngayo (2014) eKLR, Waweru v Waweru (Environment and Land Appeal 44 of 2018) [2024] KEELC 1782 (KLR) (12 April 2024) (Judgment), Maina Kabuchwa v Gachuma Gacheru (2018) eKLRand Timothy Mwangi v Kenneth Irungu Mwangi (2019) eKLR to buttress their submissions.

Analysis and Determination 9. This being a first appeal, the court is obliged to reconsider and re-evaluate the evidence adduced in the trial court and draw its own conclusions.

10. In Selle & another v Associated Motor Boat Co. Ltd [1968] EA, the court held as follows:“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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.”

11. I have considered the appeal herein, the trial court’s judgment which is the subject of this appeal as well as the submissions by counsels.

12. From the grounds of appeal, the singular issue for determination is whether the award of general damages of Ksh. 50,000 for trespass is inordinately low.

13. The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR set out the circumstances under which an appellate court can interfere with an award of damages as follows; “It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

14. DW1 and DW2 denied encroaching on the Appellant’s land and contended that they had obtained all relevant approvals from the relevant authorities to undertake the works. The approvals and the mere presence of an access road did not convert the Appellant’s private land to public land, and therefore it behooved the Respondent to seek and obtain his consent before digging the manhole.

15. I am satisfied that the Respondent trespassed on the Appellant’s private land by digging a manhole thereon, and the Appellant was thus entitled to compensation.

16. In Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & another [2013] eKLR, the court (P. Nyamweya J, as she then was) enunciated that; “The general principles 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, and not both. The overriding principle is to put the claimant in the position he was prior to the infliction of the harm. The test that guides the court in deciding which of the two measures of damages to employ is the reasonableness of the said reinstatement in light of the extra costs that may be incurred by the Defendant in this regard.”

17. The Appellant reiterated that there was only one manhole on his land and the Fibre Optic cable was above his land and not on the ground. When the locus in quo was visited by the trial court, it was established that there was a small sunken tank at the far end of the Appellant’s land occupying a very tiny portion of the land. In arriving at the figure of Ksh. 575,000, the valuer stated that the cables on the Appellant’s land hindered any development thereon. The record is clear that the cables ran overhead the way leave and thus could not have possibly interfered with any use on the Appellant’s land. I find that there was no basis upon which the sum of Ksh. 575,000 was arrived at by the valuer. It is a classic example of plucking a figure from the thin air and asking the court to award it.

18. The Appellant and the valuer were candid that the land was uncultivated, bare and undeveloped, and the cables were placed aerially and not on the ground. The contention that the Respondent’s manhole interfered with the Appellant’s use of the land is manifestly unfounded and farfetched. Undoubtedly, the state of the Appellant’s land was almost the same before and after the trespass, and I find that the sum of Ksh. 50,000 awarded by the trial court was commensurate to the nominal damage the Appellant suffered.

19. It would be futile to issue an injunction to compel the Respondent to undo the works undertaken on the Appellant’s land in relation to the small sunken tank which slightly encroaches on his land, given that he has been compensated for the said damage.

20. The inevitable conclusion from the foregoing is that the appeal lacks merit and it is hereby dismissed with costs to the Respondent.

DATED AND DELIVERED AT MERU THIS 12TH JUNE, 2025S.M. GITHINJIJUDGEAppearances:-Mrs Onyango holding brief for Mr. Aketch for the Appellant.Mr. Delson Ojong’a for the Respondent.