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Court of AppealDismissedCivil Appeal No. 55 of 2012

Mbogori & another v Nairobi City County (Civil Appeal 55 of 2012) [2018] KECA 702 (KLR)

Court of Appeal
23 March 2018
EGE. M. GithinjiAVAlnashir VisramJMJ. Mohammed
4,206 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that tenants or occupiers without title cannot sue for trespass, and demolished structures on improperly used land earn no compensation.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment of Khamoni, J. in HCCC No. 2901 of 1995, which dismissed the appellants' claim against Nairobi City County arising from the demolition of structures and removal of materials at Land Parcel No. Nairobi/Kasarani/14969, where the 1st appellant ran a poultry business. The appellants claimed Kshs.180,655,000 in general, special, exemplary and punitive damages, alleging trespass by City Inspectorate employees. The High Court found the appellants had failed to prove they were the registered proprietors and dismissed the suit. The Court of Appeal reaffirmed the first-appeal duty to re-evaluate evidence and posed the central question: whether a trespass claim can lie in favour of persons who are not the registered proprietors. Relying on Winfield & Jolowicz and Jones v Chapman, the court held that possession follows title, and the appellants, who conceded they had no title (the property being registered in the name of Kigunda), could not claim trespass. The court further found the structures unauthorized, the business use contrary to residential zoning and city by-laws, and due notice and a Demolition Order having been issued, the respondent acted lawfully in performing its planning mandate. The special damages claim failed for want of strict proof, and exemplary damages failed because the claim fell outside the Rookes v Barnard categories. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the learned Judge erred in holding that the appellants had not proved their claim against the respondent.
  2. 2.Whether a claim for trespass can flow in favour of the appellants when they are not the registered proprietors of the suit premises.
  3. 3.Whether the appellants were entitled to general damages for the demolition of structures on the suit premises.
  4. 4.Whether the appellants proved their claim for special damages to the required standard.
  5. 5.Whether the appellants were entitled to exemplary and punitive damages.

Key legal issues

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01

Whether a person without registered title can maintain an action for trespass to land.

Holding

No. Trespass to land consists of interference with possession, and where competing claims exist, possession follows title; the appellants, having conceded they had no title, could not claim trespass.

Reasoning

The court adopted Winfield & Jolowicz on Tort and Jones v Chapman: the owner with paper title is deemed in possession where competing claimants exist. The 1st appellant conceded in cross-examination that he had no title, the property being registered in Kigunda's name. Consequently the appellants, as unauthorized occupiers, had no possessory interest capable of supporting a trespass claim against the respondent.

p. 5
02

Whether the respondent's demolition of the structures was lawful.

Holding

Yes. Due notice was given to the registered owner, the structures were unauthorized, and the business use contravened the residential zoning and city by-laws.

Reasoning

The evidence showed the premises were in a residential zone (Zone 18); no change of user was applied for, no building plans were approved, and the respondent had served the registered proprietor, Kigunda, with notice and obtained a Demolition Order from the City Magistrate's Court. The respondent was thus executing its statutory duty to keep the city planned and orderly, not committing a wrongful act.

p. 5
03

Whether the claim for special damages was proved.

Holding

No. Although pleaded, special damages must be strictly proved with certainty and particularity, which was lacking.

Reasoning

Relying on David Bagine v Martin Bundi, Ouma v Nairobi City Council and Ratcliffe v Evans, the court reaffirmed that a plaintiff must prove special damages, not merely list particulars. The list of demolished items was in the pleadings, but the evidential proof of each item and quantum fell short of the required standard, so the claim failed.

p. 6
04

Whether exemplary and punitive damages were available.

Holding

No. The appellants did not bring their claim within any of the Lord Devlin categories justifying exemplary damages.

Reasoning

Applying Rookes v Barnard, exemplary damages are confined to oppressive, arbitrary or unconstitutional action by government servants, profit-making misconduct, and statutory authorization. The respondent acted under a Demolition Order in compliance with its planning mandate, so its conduct was not oppressive or arbitrary and no basis for an exemplary award was demonstrated.

p. 6

Legal principles established

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  • A claim for trespass to land requires possession or a right to possession; in the absence of title, an occupier without title cannot claim trespass against another party.
  • Special damages must be specifically pleaded and strictly proved with a degree of certainty and particularity.
  • Exemplary damages are awarded only in the categories set out in Rookes v Barnard: oppressive, arbitrary or unconstitutional action by government servants; conduct calculated to profit beyond compensation; and where expressly authorized by statute.
  • On a first appeal, the appellate court is entitled to reconsider the evidence, evaluate it and draw its own conclusions, while making allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent.

The bench

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

EG
majority

Wrote the judgment

AV
majority

Wrote the judgment

JM
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
HCCC No. 2901 of 1995
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeal as of right against the judgment and decree in HCCC No. 2901 of 1995)

Relief refused

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Judgment for loss of business, value of demolished poultry houses and auctioned properties (Kshs. 1,344,724,720/= and Kshs. 344,400,000/= as sought on appeal).

The appellants, not being registered proprietors of the suit premises, cannot claim trespass, and the structures and business activities were unauthorized and did not conform to the city by-laws.

p. 5

General damages.

There was no wrongful act by the respondent, which was performing its statutory duty of ensuring the city is planned and orderly.

p. 5

Special damages.

Special damages must be pleaded and strictly proved; certainty and particularity of proof were lacking.

p. 6

Exemplary and punitive damages.

The appellants did not demonstrate that their claim fell within the Rookes v Barnard categories justifying exemplary damages.

p. 6

Costs

The appeal was 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.

The upshot is that this appeal has no merit and is dismissed with costs to the respondent.
p. 6Final orders - dismissal of appeal
Accordingly, in the circumstances of this case, in the absence of title, the appellants cannot claim trespass against the respondent herein.
p. 5Trespass requires possession founded on title
A claim for special damages must be specifically pleaded and proved with a degree of certainty and particularity.
p. 6Standard of proof for special damages
The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter.
p. 6Nature of exemplary damages
This being a first appeal, we are entitled to reconsider the evidence, evaluate it and draw our own conclusions but making allowance for the fact that we have not seen or heard the witnesses.
p. 4Duty of a first appellate court

Issues in the judgment

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minor

The amended plaint's computation of the claim contains internal arithmetic inconsistencies (line item 'd' for loss of profits is listed as Shs.25,800,000.00 in the breakdown but the schedule totals 110 crops at Shs.980,000 = Shs.107,800,000 plus auctioned properties of Shs.73,655,000, while the total claim is stated as Shs.180,655,000.00; the lettered breakdown also omits a 'c' item).

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Mbogori & another v Nairobi City County (Civil Appeal 55 of 2012) [2018] KECA 702 (KLR)", Case Analysis (2018). Civil Appeal No. 55 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/702/eng@2018-03-23

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