Monica Anyona Dongi v Richard Otieno Okumu [2019] KEELC 11 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Trial Magistrate misapprehended the Surveyor's Report and attached map
- 2.Whether the Trial Magistrate erred in finding that the Respondent had not encroached on the Appellant's land
- 3.What appropriate reliefs should issue
Key legal issues
#Whether the Trial Magistrate misapprehended the Surveyor's Report and map
Yes; the report went beyond fixing boundaries and identified the extent of the Respondent's development extending into the Appellant's land
The surveyor's report and attached map marked with a green line the area 'Developed by the defendant', which was clearly shown to extend beyond Parcel 'C' into a significant portion of South Sakwa/Barkowino/3249. Construing 'developed' per Black's Law Dictionary, the Trial Magistrate erred in holding that the report did not point to encroachment.
Whether the Respondent encroached on the Appellant's land
Yes; the Surveyor's Report was sufficient evidence on a balance of probability to prove encroachment and development on the Appellant's land
The report included findings on the boundary between the freehold and leasehold parcels established by identifying beacons, and marked the extent to which the Respondent's development extended into the Appellant's land. The Trial Magistrate therefore erred in finding no evidence of encroachment.
Whether mesne profits should be awarded
No; not specifically pleaded and proved
Mesne profits are special damages requiring both pleading and proof; the claimant bears the onus of proving what mesne profits might with due diligence have been received. The Appellant implied only at hearing that they could be assessed at Kshs. 150,000 per month without tendering proof.
Legal principles established
#- An appellate court will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, misapprehension of the evidence, or a failure to take account of material circumstances
- Mesne profits, being special damages, must be specifically pleaded and proved; the onus of proving them lies on the party claiming them
Court orders
#- 1.Appeal allowed
- 2.Judgment and orders of the lower court set aside
- 3.Appellant's prayers for eviction orders granted
- 4.Appellant's prayer for permanent injunction granted
- 5.Claim for mesne profits refused for failure to plead and prove
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Bondo
- ELC No. 3 of 2018
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the Principal Magistrate's Court
Relief refused
#Mesne profits
Mesne profits must be specifically pleaded and proved; the Appellant tendered no proof of the claim
Costs
Costs of the suit were claimed in the suit; no explicit costs order in the extracted judgment text
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having established the Trial Magistrate’s misapprehension of the evidence and subsequent erroneous findings, I am of the opinion that this appeal ought to be allowed and the judgment and orders of the lower court be set aside. Accordingly, the Appellant’s prayers for eviction orders and permanent injunction should be granted.
It therefore follows that the Trial Magistrate misapprehended the Surveyor’s Report and the import of the area marked as “Developed by the defendant” on the attached map.
The Surveyor’s Report was sufficient evidence to prove on a balance of probability that the Respondent had indeed encroached the Appellant’s land and had carried out some development activities thereon.
The Appellant did not tender any proof for her claim for mesne profits, which she implied at hearing could be assessed as Kshs. 150,000 per month. Therefore, I am of the opinion that the Appellant’s prayer cannot be granted.
Issues in the judgment
#The judgment header states 'DATED AND DELIVERED THIS 20th TH DAY OF DECEMBER, 2019' - the typographical duplication '20th TH' is a printing error; the date of judgment is taken as 20 December 2019.
The judgment text refers to the Appellant interchangeably in the masculine and feminine ('The Appellant claimed that the suit property was registered to her deceased father' but later 'That the Appellant had failed to prove his case').
The extracted judgment contains no explicit costs order despite costs being part of the relief sought in the suit.
The extracted judgment does not state the case number of the appeal itself, only the lower court case number (Bondo PM ELC No. 3 of 2018).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monica Anyona Dongi v Richard Otieno Okumu [2019] KEELC 11 (KLR)", Case Analysis (2019). ELC Appeal from Bondo PM ELC No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/11/eng@2019-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.