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Court of AppealDismissedCivil Appeal No. 152 of 2012· [2019] KECA 973 (KLR)

Pme & 1 other v Pne

Court of Appeal of Kenya
8 February 2019
5,234 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a family land dispute, confirming that co-owners cannot sue each other for trespass and that prior court decrees are final.

What this practically means

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Executive summary

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This was a first appeal by a husband (1st appellant) and his wife (2nd appellant) against the dismissal by Khamoni, J. of their suit against the 1st appellant's divorced wife (the respondent) claiming special damages of Ksh. 8,132,494 for conversion of household goods, vacant possession of the suit land, a declaration of trespass, and mesne profits of Ksh. 100,000 per month, arising from the respondent's entry into the Tigoni property on 3rd May 1997. The trial judge had held that the parties were co-owners in undivided shares following the decree of this Court in Civil Appeal No. 75 of 2001 (which declared beneficial interests of 3/4 to the 1st appellant and 1/4 to the respondent, ordered sub-division and decreed the respondent's share to include the farm house and matrimonial home), and that trespass could not lie between co-owners of undivided shares. The Court of Appeal identified the ratio decidendi of the trial judgment as that co-ownership principle, re-assessed the evidence as on a retrial, and affirmed the dismissal. It held that the matrimonial home and farm house were exclusively the respondent's under the 2007 decree, so there was no co-ownership of them and the respondent's entry was not trespass; that res judicata, being a point of law, could be raised suo motu; that the claim for trespass to goods failed for want of proof of special damages on a balance of probability; and that the rent the 1st appellant paid for accommodation at Kentmere Club was not recoverable. The appeal was dismissed with each party bearing their own costs.

Key legal issues

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01

Trespass between co-owners of land held in undivided shares

Holding

Absent sub-division and demarcation, co-owners in undivided shares cannot sue each other in trespass; an action lies only upon actual ouster or destruction of the subject matter

Reasoning

The Court held that the 1st appellant and the respondent were tenants in common with defined but undivided beneficial interests following the decree in Civil Appeal No. 75 of 2001. Because the land had not been sub-divided as decreed, neither could pinpoint exclusive boundaries, and a trespass claim between co-owners of undivided shares cannot stand unless ouster is shown. The Court adopted the position in Cheshire and Burn's Modern Law of Real Property.

p. 2
02

Effect of the decree in Civil Appeal No. 75 of 2001 on the matrimonial home

Holding

The decree vested exclusive ownership, use and possession of the farm house, matrimonial home and access thereto in the respondent; there is no co-ownership of the matrimonial home

Reasoning

Although the land had not been sub-divided, the earlier Court of Appeal decree specifically demarcated the respondent's share to include the farm house and matrimonial home with access. Ownership of those structures was therefore vested exclusively in the respondent from 2nd February 2007. Her entry into the matrimonial home, albeit by self-help, was not trespass because the property had already been decreed as hers.

p. 5
03

Res judicata raised suo motu

Holding

Res judicata is a point of law that may be taken at any time, including by the court on its own motion; the ownership contest over the matrimonial home was res judicata

Reasoning

The appellants complained that no party pleaded res judicata and that the trial judge raised it himself. The Court agreed with the respondent that res judicata is a point of law which can be raised at any time, even suo motu. It found that what was res judicata was the decree awarding the respondent exclusive use, possession and ultimate ownership of the farm house, matrimonial home and access thereto.

p. 3
04

Proof of special damages for conversion of and trespass to chattels

Holding

The claim failed because neither party proved on a balance of probability which goods belonged to whom

Reasoning

The Court re-assessed the evidence of PW1 and DW1. The respondent testified that she packed and returned the goods she found in the house, and that some goods belonged to her. The list of items alleged to be in the house was disputed and the evidence did not establish ownership of the goods as between the parties. Applying David Bagine v Martin Bundi, special damages must be pleaded and proved; liability for general and special damages and mesne profits was not proved.

p. 5
05

Recovery of rent paid for alternative accommodation

Holding

Rent paid by the 1st appellant for accommodation at Kentmere Club was not recoverable from the respondent

Reasoning

The respondent was entitled to exclusive use and possession of the farm house and matrimonial home. It was the 1st appellant's own responsibility to move out and secure accommodation for himself, whether by building on his own portion or by renting. His continued occupation of the home decreed exclusively to the respondent was at his own risk; the loss lies where it falls.

p. 5

Legal principles established

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  • Where land is held in undivided co-ownership shares, one co-owner cannot as a general rule maintain trespass against another unless there is an actual ouster or destruction of the subject matter of the tenancy
  • A co-owner in sole occupation is not liable to pay occupation rent to another co-owner unless he or she has excluded or ousted the other from possession
  • Res judicata is a point of law that may be raised at any time, including suo motu by the court; what is res judicata here is the decree vesting exclusive ownership of the matrimonial home and farm house in the respondent
  • Special damages must both be pleaded and strictly proved; it is not enough merely to set out particulars

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear his/her costs in the appeal
On appeal from
High Court of Kenya at Nairobi
High Court Civil Case No. 667 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (appeal from judgment and decree of the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pme & 1 other v Pne", Case Analysis (2019). Civil Appeal No. 152 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/973/eng@2019-02-08

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