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Court of AppealDismissedCivil Appeal (ELC) - Memorandum of Appeal dated 14th October 2022, Mombasa· [2025] KECA 1331 (KLR)

Emfil Limited v Safaricom Limited

Court of Appeal of Kenya
18 July 2025
6,002 words in judgment
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The bottom line

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The Court of Appeal ruled that Emfil could not claim trespass damages from Safaricom because it never proved it owned or occupied the land.

What this practically means

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Executive summary

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Emfil Limited appealed against the judgment of Munyao, J. of the Environment and Land Court at Mombasa, which had dismissed the entirety of its counterclaim against Safaricom Limited. The dispute arose after Safaricom leased a 102.72 sqm portion of LR No. Kwale/Ramisi/Kinondo SSS/150 from Jua Maisha Limited, the registered proprietor, and erected a communications mast. Emfil, asserting an earlier title obtained under the repealed Registration of Titles Act, sued Safaricom for trespass, general and exemplary damages, mesne profits of Kshs.54,398,338.04, contempt of court orders and restoration of the property. In hearing the first appeal, the Court of Appeal (Murgor, Laibuta and Ngenye-Macharia, JJA) reiterated its mandate under rule 31(1)(a) of the Court of Appeal Rules, 2022 to re-appraise the evidence. It held that a claimant in trespass must prove title or actual or constructive possession; Emfil produced no title showing ownership of the suit property and no evidence of occupation, and its competing title claim against Jua Maisha Limited remained unresolved in a pending suit (Mombasa ELC No. 113 of 2015). The restraining orders Emfil invoked had lapsed for want of service, no caveat had been lodged, and Safaricom only learned of Emfil's claim by a letter of 1st October 2015, after the lease was executed. On mesne profits, the Court affirmed that they are special damages to be specifically pleaded and strictly proved, and Emfil's bare declaration claim, without particulars, failed. The appeal was dismissed with costs to the respondent, and the judgment of the ELC delivered on 26th April 2022 was upheld.

Key legal issues

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01

Ingredients of the tort of trespass to land

Holding

Trespass requires proof of title or of actual/constructive possession by the claimant; the appellant had neither at the material time.

Reasoning

Relying on Black's Law Dictionary, Winfield & Jolowicz, and M'Ikiara M'Mukanya, the Court held that trespass protects possession, not mere paper title under dispute. Where two competing titles exist and no judicial pronouncement has settled which prevails, and the claimant led no evidence of occupation, the claimant cannot call the other party's entry a trespass. The respondent's entry was on the faith of the register.

p. 9
02

Whether mesne profits were pleaded and proved

Holding

The claim failed; mesne profits must be specifically pleaded and strictly proved as special damages, which the appellant did not do.

Reasoning

The appellant only sought a declaration without particulars of how the Kshs.54,398,338.04 was computed. The respondent vacated before substantively commencing business, and the appellant did not prove it conducted any economic activity on the land. Following Peter Mwangi Mbuthia and Unifresh Exotics, the claim was unsustainable.

p. 10
03

Notice of restraining orders and due diligence

Holding

The respondent had no knowledge of the orders when it signed the lease on 26th August 2015; the orders of 27th May 2015 had lapsed for want of service, and no caveat was lodged.

Reasoning

The Court accepted the orders pre-dated the lease but were only brought to the respondent's attention by a letter of 1st October 2015, after the lease was executed. The trial Judge had found the interim orders lapsed within three days for want of service under Order 40 rule 4(3). The appellant was also not vigilant, taking two months to demand vacation. The respondent conducted a search and relied on the register.

p. 8
04

First appellate court mandate

Holding

As a first appellate court, the Court is duty-bound to re-appraise and re-analyse the evidence and draw its own inferences of fact, while making allowance for not having seen or heard the witnesses.

Reasoning

Citing Selle vs. Associated Motor Boat Co. and Jabane vs. Olenja, the Court restated that an appeal by way of retrial permits interference with factual findings only where they are based on no evidence or on wrong principles. The Court exercised that mandate but reached the same conclusion as the trial Judge.

p. 7

Legal principles established

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  • A claimant in trespass must either hold title to the land or prove actual or constructive possession of it; without one of these, no claim in trespass can succeed.
  • Mesne profits are special damages that must be specifically pleaded and strictly proved with particulars showing how the amount claimed was arrived at; a bare prayer for a declaration is insufficient.
  • A certificate of title is prima facie evidence that the named proprietor is absolute and indefeasible, and the best evidence of ownership of immovable property is the title deed; absent a caveat or restriction, a third party dealing with the registered proprietor on the strength of an official search cannot be faulted.

Court orders

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  1. 1.Dismissal of the appeal with costs to the respondent
  2. 2.Upholding the Judgment of the Environment and Land Court (Munyao, J.) delivered on 26th April 2022
On appeal from
Environment and Land Court
ELC Case No. 5 of 2016 (Mombasa)
Jurisdiction invoked
First appellate jurisdiction under rule 31(1)(a) of the Court of Appeal Rules, 2022

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, "Emfil Limited v Safaricom Limited", Case Analysis (2025). Civil Appeal (ELC) - Memorandum of Appeal dated 14th October 2022, Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1331/eng@2025-07-18

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