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Court of AppealDismissedCivil Appeal No 13 of 1980

M’Ikiara M’Mukanya & another vs Gilbert Kabere M’Mbijiwe [1983] KECA 121 (KLR)

Court of Appeal
21 February 1984
POPotterKNKnellerCHChesoni
5,544 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you can sue for trespass if you have the right to possess land, even without owning it or proving damage.

What this practically means

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Executive summary

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This second appeal, brought by M'Mukanya and Nyamu, challenged the Court of Appeal at Nairobi's review of a decision of Cockar J at Nyeri, who had dismissed their first appeal against a judgment of the Senior Resident Magistrate at Meru awarding Gilbert Kabeere M'Mbijiwe eviction from plot 58 Nkubu Market, Kshs 2,000 general damages and costs. The sole ground was that the courts below erred in holding the appellants trespassers. Kneller JA, in a judgment agreed to by Chesoni Ag JA (who wrote separately) and Potter JA, held that trespass to land is a violation of the right of possession rather than of ownership: the respondent proved on a balance of probabilities a right to immediate and exclusive possession of the large plot 58, and the appellants' entry upon it, though made under an honest belief based on the Clerk's irregular subdivision and re-allocation, constituted trespass. Chesoni Ag JA, analysing the Constitution and the Trust Land Act, held the respondent's interest was leasehold rather than a licence, that it had never been lawfully determined, and that the Council could not allocate a plot it no longer had to give. The judgment binds subordinate courts on the elements of trespass and the effect of allotments over Trust land. The appeal was dismissed with costs to the respondent; the damages award was left undisturbed because no appeal lay against it.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the magistrate and the judge erred in law in finding M'Mukanya and Nyamu were trespassers
  2. 2.Whether the respondent was a mere licensee without title to sue, or held a leasehold interest
  3. 3.Whether an action in trespass lies without exclusive possession, and whether an honest belief of entitlement negates trespass

Key legal issues

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01

Ingredients of the tort of trespass to land

Holding

Trespass is a violation of the right of possession; the plaintiff must prove on a balance of probabilities a right to immediate and exclusive possession, and damage need not be proved. Entry under an honest belief or mistake is no defence.

Reasoning

Kneller JA drew on Thomson v Ward, Ashby v White, Basely v Clarkson, Hewlitt v Bickerton and Conway v Wimpey to establish that the right to sue lies in the right to immediate possession, distinct from ownership. Possession may be presumed by legal fiction from the accrual of the right of entry. The magistrate and judge had found the respondent allocated and identified the large plot in 1970, so his right to sue was established even though the appellants acted under an honest mistake based on the Clerk's action.

02

Whether the respondent held a lease or a licence over the plot

Holding

The respondent held a leasehold interest; the correspondence referred to rent rather than fees or royalties, and neither a lease nor a licence had been lawfully determined.

Reasoning

Chesoni Ag JA examined the Constitution (sections 115 and 117) and the Trust Land Act (Cap 288). Section 57 permits licences only for specified purposes such as grazing or wayleaves, none of which covered the business use of the plot. Reading sections 37 and 39 of the Act with the exhibits, the demand for rent signified a lease. Even as a licence, it could be determined only by a court order after notice under the Act; cancellation of a name in the register was ineffective, and the Council having accepted rent could not deny the respondent's interest.

p. 8
03

Validity of the allocation of the plot to the appellants

Holding

The alleged allocation to the appellants was of no effect in law because the plot was already allotted to the respondent and the subdivision was unauthorised.

Reasoning

The plot had been granted to the respondent in 1967. The subdivision of the large plot 58 was effected by the Council's Clerk without authority and was never passed to the Commissioner of Lands for approval, making it irregular and of no effect. The Council could not allocate what it did not have. The appellants produced no letter of allocation, only indications, and possession of this type of plot is presumed from payment and receipt of a plot number, without need of continuous physical occupation.

p. 8

Legal principles established

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  • Trespass to land is a violation of the right of possession, not of ownership; a plaintiff need only prove a right to immediate and exclusive possession, and need not prove damage
  • An honest belief of entitlement to enter land, or entry under a mistake, is no defence to trespass
  • An allotment letter requiring payment of rent creates a leasehold interest, not a licence; and a licensee or lessee's interest in Trust land can be determined only by a court order under the Trust Land Act
  • A county council cannot allocate what it does not have; an allocation of an already allotted plot is of no effect in law

Court orders

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  1. 1.Appeal dismissed
  2. 2.Respondent awarded costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

KN
majority

Wrote the judgment

Wrote the leading judgment. Held that trespass to land is a violation of the right of possession, not of ownership; the respondent proved a right to immediate and exclusive possession of the large plot 58 and the appellants, though acting under an honest mistake, were trespassers. Dismissed the appeal with costs.

Thus, the following have been held liable: the defendant who when mowing his land mowed grass by mistake, on the plaintiff's adjoining landp. 5
CH
ChesoniAg JA
concurring

Wrote the judgment

Wrote a separate concurring judgment. Analysed the Trust Land Act and the Constitution and held the respondent's interest was a leasehold and not a licence; the appellants' alleged allocation was of no effect because the Council had no plot to allocate, and the respondent's interest was never lawfully determined.

I would hold that the respondent’s interest in plot No 58 at Nkubu market is a leasehold and not a licencep. 8
PO
majority
On appeal from
High Court at Nyeri
Jurisdiction invoked
Second appeal under Rule 52(5) of the Court of Appeal Rules

Relief refused

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Setting aside the finding that the appellants were trespassers

The respondent proved on the balance of probabilities a right to immediate and exclusive possession; the appellants' honest belief did not excuse them

p. 5

Reduction of the Kshs 2,000 damages to a nominal sum

No appeal was brought against the damages award in the High Court or this Court

p. 5

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This tort is a violation of the right of possession and M'Mbijiwe must prove he, and not M'Mukanya and Nyamu, had the right to immediate and exclusive possession ok it which is different from ownership.
p. 5Ingredients of trespass to land
M'Mukanya and Nyamu are liable for trespass if M'Mbijiwe has the right to possess and they intentionally entered his plot even though they honestly believed the land was their own and they had a right of entry on it
p. 5Mistaken belief no defence to trespass
The Council having accepted and received payment for the plot by way of rent from M'Mbijiwe could not turn round and say that he had no interest in the plot.
p. 8Estoppel against the council
It is not necessary to live on the land. I do not think the phrase - necessarily means continuous physical possession and occupation.
p. 8Possession of market plots
Accordingly, I would dismiss this appeal with costs and as Chesoni Ag. JA agrees those are the orders of the court.
p. 5Final orders
This appeal, for the reasons I have given, must fail and I would dismiss it with costs.
p. 8Final orders

Issues in the judgment

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minor

The judgment states the judgment was delivered on 21st February 1984 but is signed '24th May 1983', an internal date contradiction.

minor

Chesoni Ag JA quotes Section 57(1) of the Trust Land Act but the quoted text is numbered '37(1)', a misquotation within the judgment.

minor

The case list heading gives Thompson v Ward as [1955] 2 QB 155 but the body of the judgment cites it as 'Thomson v Ward [1953] 2 QB 153'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "M’Ikiara M’Mukanya & another vs Gilbert Kabere M’Mbijiwe [1983] KECA 121 (KLR)", Case Analysis (1984). Civil Appeal No 13 of 1980. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/121/eng@1983-05-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.