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ELCDismissedELCA No. E152 of 2024· [2026] KEELC 2845 (KLR)

Homem v Standard Group PLC (Environment and Land Appeal E152 of 2024) [2026] KEELC 2845 (KLR)

Environment and Land Court
14 May 2026
EWE. K. Wabwoto
6,417 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~26 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court against part of the judgment of B.M. Cheloti, SPM, delivered on 9th September 2024 in Milimani CM Suit No. E439 of 2021, in which the Appellant, registered proprietor of LR No. 330/580 along Ngong Road, Nairobi, obtained rent arrears of Kshs. 2,251,445/= from the Respondent under a 2017 billboard Licence Agreement, but the trial court made no determination on her pleaded prayers for vacant possession, mesne profits and damages for trespass. The appeal raised four grounds centred on that omission. The Court framed five issues. On the first, it found the learned Magistrate's failure to adjudicate upon the specifically pleaded reliefs was a misdirection warranting intervention. However, on re-evaluation under the remaining issues, the Court found the reliefs could not stand: the pleading on trespass was contingent and prospective and never amended into an accrued cause of action; the Appellant admitted in cross-examination that no termination notice compliant with the Licence Agreement was issued, so the Respondent could not be converted into a trespasser; and no evidence of continued occupation after expiry of the licence on 30th October 2022 was adduced, the Third Party evidence instead suggesting possession had reverted to the Appellant. Mesne profits, as special damages requiring specific pleading and strict proof, were conceded before the trial court to be unpleaded, and quantum advanced on appeal (Kshs. 3,500,000/=) was impermissible litigation by submissions. Although the misdirection was established, the substantive outcome was correct, so the appeal was dismissed, the trial judgment affirmed, and each party ordered to bear its own costs of the appeal, with the subordinate court's costs order undisturbed.

Key legal issues

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01

Failure of the trial court to determine pleaded reliefs

Holding

The omission to determine the pleaded reliefs of vacant possession, mesne profits and damages was a misdirection in law warranting appellate intervention, but it did not of itself entitle the Appellant to the reliefs.

Reasoning

Order 21 Rule 5 requires a court to determine all issues properly before it. The trial judgment was silent on the contested prayers, with no reasons for their non-award. However, the appellate court must itself evaluate the evidence to decide whether the reliefs are warranted before granting them.

p. 19
02

Pleading and proof of trespass and continued occupation

Holding

The pleading was contingent and prospective, no amendment converted it into an accrued cause of action, and no evidence of continued occupation was adduced; the claim failed.

Reasoning

The words 'in the event that' and 'shall fail' rendered paragraph 12 of the Plaint contingent. The hearing occurred long after expiry, yet no amendment was made. The Appellant admitted no compliant termination notice was issued, and produced no photographs, inspection reports or correspondence proving continued occupation; Third Party evidence indicated possession had reverted to the Appellant.

p. 21
03

Entitlement to mesne profits and damages for trespass

Holding

Mesne profits, being special damages requiring specific pleading and strict proof, and damages for trespass, requiring trespass first to be pleaded and proved, both failed.

Reasoning

Wrongful possession is the essence of mesne profits; without lawful termination of the licence, wrongful possession was absent. No quantified amount, rate or particulars were pleaded, and the Appellant conceded this before the trial court, binding her on appeal under the principle against approbating and reprobating.

p. 31
04

Whether the appellate court should interfere with the trial decision

Holding

Although the misdirection was established, the substantive outcome was correct on re-evaluation, so the Court declined to disturb it.

Reasoning

Appellate intervention is pointless where the fresh evaluation reaches the same result as the trial court. The reliefs were not warranted in law or fact on the pleadings and evidence, so the appeal, though procedurally justified by the omission, had to fail on the merits.

p. 34

Legal principles established

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  • A court adjudicating a civil suit must determine all issues properly before it; an unexplained omission to pronounce on a pleaded and argued relief is a misdirection warranting appellate intervention, though it does not of itself entitle the appellant to the reliefs sought.
  • Parties are bound by their pleadings; an appellate court will not permit a party to introduce, through submissions, facts or reliefs never pleaded or proved.
  • A licensee in occupation under a subsisting contractual right cannot be a trespasser without lawful termination of the licence; the remedy for breach lies in contract.
  • An appellate court will not disturb a trial decision merely because of a procedural misdirection where its own re-evaluation leads to the same substantive outcome.

Court orders

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  1. 1.The appeal is hereby dismissed
  2. 2.The judgment of the trial court and the consequential decree arising therefrom be and is hereby affirmed
  3. 3.Each party shall bear own costs of the appeal
  4. 4.The costs order of the subordinate court in favour of the Appellant shall remain undisturbed
On appeal from
Milimani Chief Magistrate's Court
Suit No. E439 of 2021
Jurisdiction invoked
Section 78 of the Civil Procedure Act (Cap 21) and Order 42 of the Civil Procedure Rules, 2010 (first appeal)

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, "Homem v Standard Group PLC (Environment and Land Appeal E152 of 2024) [2026] KEELC 2845 (KLR)", Case Analysis (2026). ELCA No. E152 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2845/eng@2026-05-14

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