Emfil Limited v Safaricom Limited
The bottom line
#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
#Executive summary
#Key legal issues
#Ingredients of the tort of trespass to land
Trespass requires proof of title or of actual/constructive possession by the claimant; the appellant had neither at the material time.
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.
Whether mesne profits were pleaded and proved
The claim failed; mesne profits must be specifically pleaded and strictly proved as special damages, which the appellant did not do.
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.
Notice of restraining orders and due diligence
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.
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.
First appellate court mandate
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.
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.
Legal principles established
#- 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
#- 1.Dismissal of the appeal with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.