Before the Court is an Appeal against the judgment delivered on 27th February 2023 by the Honourable E. Kanyiri, Principal Magistrate in Karatina SPM Court in ELC Case No.41 of 2018 (as consolidated with Karatina SPM ELC No.77 of 2018).
2. The Grounds of Appeal contained in the Memorandum of Appeal dated 20th March 2023 are;
i) That the Learned Trial Magistrate erred in law and fact in holding that the 1st Respondent had proved a case on damages sought on a balance of probabilities, which was against the weight of the evidence before the court and the applicable law, and thereby arrived at a wrong decision.
ii) That the Learned Trial Magistrate erred in law and fact in holding that the Appellant did not deny that there was a valid court order in existence, barring him from dealing with the property Title No.Konyu/Barich/4211, despite the same having not been an issue pleaded by the 1st Respondent/Plaintiff and a rebuttal expected from the Appellant/1st Defendant, notwithstanding the Appellant had in evidence canvassed he was not aware, nor served with a court order of the nature claimed and thereby arrived at a wrong decision.
iii) That the Learned Trial Magistrate erred in law and fact in holding the Appellant was in disobedience or contempt of a court order and proceeded to penalise him with damages, thereby leading to a miscarriage of justice.
iv) That the Learned Trial Magistrate erred in law and fact in awarding damages to the 1st Respondent for demolition in the sum of Kshs 535,000=, which had not been specifically pleaded, particularised and or proved as statutorily required, and thereby arrived at a wrong decision.
v) The Learned Trial Magistrate erred in law and fact in awarding benefits in the form of damages to the 1st Respondent, a wrongdoer, being a trespasser on the premises, when ignoring the same was an unlawful act and thereby arrived at a wrong decision.
vi) That the Learned Trial Magistrate erred in law and fact in failing to appreciate that the parties are bound by their pleadings especially, the 1st Respondent /Plaintiff had not pleaded any contravention of a court order by the Appellant/1st Defendant and therefore could not shift his case from that set out in his Plaint and replace it with what was in his witness statement and thereby arrived at a wrong decision.
vii) That the Learned Trial Magistrate erred in law and fact in entertaining an alleged issue of disobedience of a Court Order, and granting a relief thereof, which had not been sought and thereby arrived at a wrong decision.
viii) That the Learned Trial Magistrate erred in law and fact in purporting to make a determination on disobedience of a Court Order, allegedly by the Appellant, which was not an issue which had been pleaded by the 1st Respondent/Plaintiff and therefore could not form a basis of determination by the court and thereby arrived at a wrong decision.
ix) That the Learned Trial Magistrate erred in law and fact in shifting the burden of proof to the Appellant when, in fact, he had no such obligation and thereby arrived at a wrong decision.
x) That the Learned Trial Magistrate erred in law in failing to evaluate the evidence tendered by the Appellant, nor take cognisance of the Appellant''s submissions and the case laws put to her, and thereby arrived at a wrong decision.
3. The Appellant prays for the following orders:
a) This Appeal be allowed.
b) The judgment dated 27th February 2023 allowing the relief sought by the 1st Respondent for the payment of damages in the sum of Ksh 535,000/= be quashed and set aside, and in place thereof, be substituted with an order dismissing the 1st Respondent/Plaintiff’s suit with costs to the 1st Defendant/Appellant.
c) The Appellant be awarded the costs of this Appeal.
Summary of the case before the trial Court
4. The suit before the trial court comprised several cases:
A) Nyeri ELC case No.178 of 2014, Francis Kariithi Wambu versus Maina Daudi. In the said suit, the Plaintiff sought “An order that the Defendant vacates Land Parcel No.KONYU/BARICHO/4211, belonging to the Plaintiff, and in default, the defendant is to be evicted from the said parcel of land"
B) Nyeri ELC Case No.150 of 2014(O.S) Patrick Maina Kinyua versus Wairimu Muriuki, Joseph Kinaro Maina and Jane Wangui Kinaro. The Applicant in an Originating Summons dated 7th July 2014 sought orders -
i) That it be declared that the 1st Respondent, Wairimu Muriuki, created a trust for sale over 0.1 HA out of land LR. KONYU/BARICHO/4162 in favour of the 1st and 2nd Respondents, Joseph Kinaro Maina and Jane Wanjiru Kinaro.
ii) That it be declared that the sale of 0.1 ha out of parcel of land L.R. NO, KONYU/BARICHO/4162 BY THE 2ND AND 3RD Respondents to the Applicant vide the sale agreement dated 5th July 2011 resulted in the 1st Respondent holding the sold property in trust for the Applicant.
iii) That the trust so declared be determined in favour of the Applicant, ordering transfer of the 0.1 ha of the 1st Respondent to the Applicant.
iv) That alternatively and without prejudice to the aforestated, the Respondents be ordered to refund to the Applicant the purchase price at Kshs 520,000/= and the value of developments on the suit land.
C) The above two suits were, by an order of the ELC Court issued on 8th October 2018, transferred to the Karatina SPM''s Court for hearing and determination. In Karatina, the two suits were consolidated and given the number Karatina Principal Magistrate’s Court CMELC Case No.77 of 2018.
D) Karatina Principal Magistrate’s Court CMELC Case 41 of 2018 Maina versus Francis Kariithi Wambu. In this suit, vide Plaint dated 12th June 2018, the Plaintiff claimed ownership of the rental premises situated in the parcel of land LR. NO. KONYU/BARICHO/4211, comprising nineteen (19) residential rental units and other necessary amenities, which the defendant demolished, causing him loss. He prayed for Damages and mesne profits in the form of rental income from June 2018 to the date of judgment.
E) The above Case number 41 of 2018 was then consolidated with Karatina SPM’s court case number 77 of 2018, with the lead file being 77 of 2018. The matter was then set down for hearing.
Hearing of the Suit
5. During the hearing, PW 1, Patrick Maina Kinyua, the Plaintiff, testified that Wairimu Muriuki (2nd Respondent (deceased) sold to him the suit land Konyu/Baricho/4211, where he constructed houses. The 3rd Respondent, Joseph Kinaro Maina, is a grandchild of Wairimu, while Jane (4th Respondent) is the mother of the 3rd Respondent herein.
6. The Plaintiff confirmed that they entered into an agreement for the sale of land in 2014 for a consideration of KShs.400, 000/=. He constructed houses for the 2nd and 3rd Respondents, and he was allowed to build 19 houses for himself, from which he got rental income at the rate of Kshs. 1,500 per room, making a monthly income of Kshs. 27 000. Later on, the Appellant and the Respondents herein complained that the land did not belong to him, and a letter of eviction was sent to the tenants. He reported the matter to the police and informed his lawyer, who moved to Court through Nyeri High Court case 150 of 2014, where he obtained status quo orders.
7. Despite the Court orders, the Plaintiff stated that from 18th May 2018, the Defendants started demolishing his rental premises without any notice to him or his tenants. As a result, he filed a suit Karatina MCELC 41 of 2018 claiming Ksh 534 000/= in damages. The damages were assessed by a valuer. In his witness statement, the Plaintiff stated that he constructed the rental houses on the suit property in 2011, but later learnt that the Defendant, who is the Appellant herein, had, without his knowledge, been registered as proprietor of the land on or about 4th July 2014.
8. On cross-examination, the Plaintiff stated that when he conducted a search on the suit property, it was in Muriuki Gathirimu’s name, and that the 2nd Respondent herein was not indicated as the vendor. They informed the lawyer that the owner was deceased and they were awaiting succession so that he could be given his share of the land.
9. DW 1 Francis Kariithi Wambu, the 1st Defendant and the Appellant herein, testified, adopting his witness statement dated 29/5/2019 as evidence, as well as his bundle of documents dated 5/10/2018. He stated that between 21/10/2011 and 7/7/2014, he purchased from one Wairimu Muriuki, the 2nd Respondent herein, a piece of land measuring approximately 0.1012 Ha, which was excised out of Title No. Konyu/Baricho/55. The resultant title was L.R. Konyu/Baricho/4211. After paying full consideration, he was registered as a proprietor.
10. He testified that on the land were dilapidated and uninhabitable shanties, belonging to the vendor, which he bought together with the land. Since nobody was residing in the houses, some squatters trespassed and entered the premises, where they occupied two of the rooms, and he demanded that they leave. They left, and he pulled down the said structures and fenced the land.
11. The 1st Defendant/Appellant herein asserted that the Plaintiff/1st Respondent herein had no proprietary right over the property Title Konyu/Baricho/4211, which rightfully belongs to him and that if the plaintiff entered the suit property, he can only be a wrongful trespasser. He also denied being served with a court order restricting him from using his land.
12. DW 2 Mary Wambui Karuri testified, adopting her witness statement dated 1/2/22. She stated that she was representing her grandmother, Wairimu Muriuki, as her legal representative since she is now deceased. She confirmed that her grandmother sold the suit land to the Appellant herein, and she witnessed the agreement.
13. She adopted the witness statement of Wairimu Muriuki (Deceased) dated 29th May 2019, filed in CMELC 41 of 2018.
14. In the said witness statement, Wairimu Muriuki (Deceased) stated that she inherited from her husband, Muriuki Gathirimu (Deceased), the property known as LR Konyu/Baricho/55. The land was subdivided into 3 equal portions, and she was the beneficiary of 0.5 acres known as LR Konyu/Baricho/4162.
15. On or around 21/10/2011, to finance the Succession Cause and to help her secure a title deed to her portion of the land, she sold a portion of her land measuring 0.56Ha for a consideration of Ksh 750,000/= to Francis Kariithi Wambu, the Appellant herein, which he paid. Further, on or around 7th July 2014, she entered into a further agreement for the sale of a portion measuring 0.0452Ha together with the developments thereon, for a consideration of Kshs. 680,000, making the land, together with the previous land, a total of 0.1012Ha. The entire portion was known as LR Konyu/Baricho/4211. They attended the Land Control Board, and the Appellant was registered as the absolute owner of the land.
16. She denied entering into an agreement for the sale of LR Konyu/Baricho/4211 with Patrick Maina Kinyua, the 1st Respondent herein or allowing him to enter into her land. She stated that the 3rd and 4th Respondents herein had no capacity to grant any license to pass or enter her land or transfer any interest or title thereof.
17. DW 3 Jane Wangui Kinaru adopted her witness statement dated 9/1/2016 as her evidence in chief, in which she denied selling the suit land to the 1st Respondent herein, stating that she had no locus to sell it on behalf of the 2nd Respondent, Wairimu Muriuki. On cross-examination, the witness admitted to being in a long romantic relationship with the Plaintiff, where he moved in as her husband and built her a house. She denied getting Ksh 400,000/= cash from him for the sale of land, but acknowledged that the agreement was brought to her to sign and that the Plaintiff had 19 tenants, from whom he would sometimes collect rent even though he built the houses for her.
18. She, however, denied knowledge of the sale agreement dated 5/7/2011. She acknowledged witnessing the agreements dated 21/10/2011 and 7/7/2018 between the Plaintiff and the 2nd Respondent and stated that the Plaintiff kick-started the succession process.
19. DW 4 Joseph Kinaro Maina adopted his witness statement dated 15/7/2014, which was a reply to the Originating Summons, as his evidence in chief. Therein, he denied that the 2nd Respondent herein ever gave him a portion of the suit land and also denied selling a portion of it to the Plaintiff.
20. He also stated that the agreement mentioned in the originating summons was drawn by the plaintiff, and he was forced to sign it by his mother, since they were living together as husband and wife with the applicant. He denied receiving any money for the same. On cross-examination, he denied signing the agreement by the Plaintiff and dismissed it as fake.
21. The Trial Court delivered judgment on 26th February 2023, finding that the suit land initially belonged to the 2nd Defendant’s husband and later to her. The Court found that the 3rd and 4th defendants did not have the legal right to transact the agreement of sale dated 5th July 2011. The Court also found that since the Plaintiff did not challenge the manner in which the defendant''s title to the suit land had been acquired, then the title, as per the law, remains absolute and indefeasible.
22. On the part of the Appellant, who was the 1st Defendant before the Trial Court, the Trial Court found that he did not deny that he chased some squatters away from the suit land and demolished the structures therein and fenced the land against the backdrop of a valid court order, which had never been vacated. Therefore, the trial court made orders maintaining the 1st Defendant as the legal and rightful proprietor of L.R. NO.KONYU BARICHO/4211.
23. Further, the Trial Magistrate made an order that the Appellant herein shall pay the Plaintiff damages of Ksh 535,000, being damages for the demolition of the 19 rental houses. It is this order that the Appellant herein seeks an appeal against.
Appellant’s Written Submissions
24. Counsel for the Appellant submitted that the judgment of the trial court was faulty in the award of damages to the 1st Respondent/Plaintiff in the sum of Ksh 535 000/=. He submitted that this was an award of special damages but had not been specifically pleaded, particularised, nor proven as statutorily required. Counsel further highlighted that there is no schedule attached to the Plaint as alleged. On this point, Counsel relied on the following authorities: Ouma v. Nairobi City Council(1976)KLR 304, Swalleh C. Kariuki and another vs Violet Omiso Okuyu(2021)eKLR.
25. It was submitted that if there was any loss suffered by the 1st Respondent/Plaintiff, he could have quantified the same and brought the calculation before the Honourable Trial Court for compensation.
26. On grounds 3 and 5, the Appellant faults the judgment of the trial court as being punitive, taking into account that the Appellant was not in Contempt of Court and the court''s discretion did not meet the legal threshold for such an award, relying on the holding of Mativo J in the case of Nairobi Misc Application No.573 of 2017: Republic vs. Kenya University Ex parte Losem Naomi Chepkemoi on the elements necessary to prove contempt of Court.
27. It is the Appellant’s submission that there is no evidence that the Plaintiff had filed a suit against the Appellant seeking to bar him from dealing with the suit land Title No.Konyo/Baricho/4211, noting that in Nyeri HCCC No.150 of 2011(OS), the Appellant was not a party to the suit. That no process server was called to testify on service of the court order dated 7/7/2014 upon the Appellant. It was highlighted that the Appellant confirmed that no court order was served on him on re-examination during the trial.
28. On the issue of personal service of a court order being crucial in contempt of court proceedings, Counsel relied on Lenaola J’s decision (as he then was) in High Court Misc. Civil Application No.389 of 2004:Kariuki and 2 others v. Minister for Gender, Culture & Social Services & 2 others, submitting that the Trial Court should not have inferred knowledge of the said court order when there was no personal service.
29. Counsel submitted that contempt of Court has a higher threshold of proof than in normal civil cases, relying on the authority in Judicial Review Misc. Application No.9 of 2019; Republic vs University of Nairobi & 2 others Ex parte Mwangi Emma Wahito and another, which was not met before the trial court, before he was penalised with damages of Ksh 535,000.
30. On grounds 6, 7 and 8, the Appellant submitted that parties are bound by their pleadings and that the 1st Respondent/Plaintiff and the 1st Respondent had not pleaded any issue of contravention of a court order and had not sought specific damages assessed at Ksh 534,000/= in the plaint and had also not sought general damages.
31. By finding that the Appellant should pay the 1st Respondent damages of Ksh.534,000, Counsel submitted that this was akin to condemning him with contempt of court before being heard on the issue, where there was no application made nor the issue pleaded.
32. It is also their position that submissions are not pleadings, and the fact that the Plaintiff mentioned the assessed damages amount therein does not mean that the matter was properly before the trial court.
1st Respondent’s Submissions
33. Counsel for the 1st Respondent began by submitting on grounds 1, 2, 3, 6, 7 and 8 of the Appeal. He quoted from Section 5 of the Judicature Act, as read together with Section 29 of the Environment and Land Court Act, as the guiding laws on contempt of court after the Contempt of Court Act was declared unconstitutional. They also quoted Order 40 Rule 3(1) of the Civil Procedure Rules on the punishment for disobedience of an injunction by attachment of property and detention in prison for a term not exceeding six months.
34. Counsel submits that in the case ELC (OS) 150/2014, through an application under Certificate of Urgency dated 7.7.2014, an order was issued on the same day restricting the respondents from alienating the suit land or interfering with the 1st respondent''s property pending hearing and determination of the application. That despite the appellant knowing of and having been served with the court order as evidenced by his testimony upon cross examination in his own words, he said, "I was served with a court order to stop me from interfering with the shamba, but I already had the title." the Appellant went ahead to interfere with the suit land by issuing eviction notices to tenants as well as demolishing the 1st respondent''s rental houses, forcing the 1st Respondent herein to file an application for contempt dated 15.5.2018 as well as a new suit against the appellant in Karatina C.M ELC 41/2018, seeking for damages for destruction of the rental property as well as loss of income.
35. Counsel relied on the ingredients of contempt as given in the authority of Samuel M. N. Maweu & others v National Land Commission (2020) eKLR, submitting that the appellant willfully disobeyed the court orders in the pretext that he already had the title to the suit land. It is therefore their submission that the trial court was not in error in considering the issue of the court order in its determination, the same having been in issue in ELC (OS) 150/2014.
36. Submitting on grounds 4, 5, 9 and 10 of the memorandum of appeal, the 1st respondent relied on the case of Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, on the authority that special damages must be specifically pleaded and proven, in Karatina CM ELC 41/2018, the 1st Respondent particularized loss/damages under paragraph 5 of the Plaint. That they proceeded to attach a valuation report from Rwingo Valuers dated 6th June 2018, which assessed the total damage caused at Ksh 534,000 and loss of rental income at Ksh 27,000 per month.
37. Counsel concluded that the trial court entered a proper finding as guided by the evidence presented in court, the 1st respondent having particularised his losses in his pleadings, which arose from the appellant disobeying the court orders of 7.7.2014, despite having been in the knowledge of it, and urged this Court to uphold the judgment of the trial court.
Analysis and Determination
38. The role of a first appellate court was stated in the Court of Appeal case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, as follows:
"This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way."
39. The Court has considered the Grounds of Appeal contained in the Memorandum of Appeal, the record of appeal and submissions by Counsel for the parties and is of the view that the Grounds of Appeal can be summarised as follows:
1) Grounds 2, 3, 6, 7 and 8: Whether the trial court erred in finding that the Appellant demolished the 1st Respondents’ houses in contravention of a valid court order barring the said act.
2) Grounds 1, 2, 4 and 6: Whether damages awarded by the trial court were special damages and were required to be specifically pleaded and strictly proved and whether the trial court erred in making the award.
3) Ground 5: Whether the trial court erred in awarding damages to a trespasser.
4) Grounds 8 and 9: Whether the trial court erred in shifting the burden of proof to the Appellant, and whether the court considered the evidence and submissions of the Appellant in arriving at its decision.
1) Whether the trial court erred in finding that the Appellant demolished the 1st Respondents’ houses in contravention of a valid court order.
40. The Appellant argued that he was wrongly found guilty of contempt of court by the Trial Court, while the issue was not specifically pleaded and proven, even though it formed the basis for condemning him to pay damages. The trial court found that the demolition of the 1st Respondent’s houses was made against a backdrop of a valid court order, thus it was illegal, null and not justified.
41. In reply to this issue, the 1st Respondent relied on Section 5 of the Judicature Act as read with Section 29 of the Environment and Land Court Act as the guiding laws on contempt of court. He also relied on Order 40 Rule 3(1) of the Civil Procedure Rules on the punishment for disobedience of an order of injunction.
42. The Court Order under consideration emanated from Nyeri ELC suit no. 150/2014 (OS). The 1st Respondent herein filed an application dated 7th July 2014 under Order 40 Rule 1 of the Civil Procedure Rules seeking an injunction against the respondents restraining them from alienating or interfering with LR No. KONYU/BARICHO/4162 pending hearing and determination of the suit. The Court notes that the Appellant herein was not a party to the said suit. The Respondents in the said suit were Wairimu Muriuki, Joseph Kinaro Maina and Jane Wangui Kinaro, the 2nd – 4th Respondents herein. They are the 2nd, 3rd and 4th Respondents in this appeal. Interim orders were granted on the date of filing the application and confirmed by consent of Counsel for the parties in that suit on 26th January 2015.
43. In the course of the proceedings in the said ELC Case No.150/2014(0S), the 1st Respondent filed an application dated 15th May 2018, where the name of the Appellant herein was inserted as a Respondent. He sought orders inter alia that all 4 respondents had violated the court order and requested the court to further restrain them from alienating the suit land and to include the Appellant herein.
44. The court record shows that this application was never heard but was withdrawn by consent of the Counsels, withdrawn on 18th June 2018. The court has perused the entire record of appeal and has not found any indication that the Appellant was ever joined as a party to the suit 150/2014 (OS).
45. The court finds that the orders made in that suit were not directed at, or addressed to, the Appellant, who was not a party to the suit. Further, the 1st Respondent did not show, and the trial court did not find that the Appellant was an agent or a servant of the 2nd, 3rd and 4th Respondents herein. The evidence on record shows that the Appellant was issued with the title deed to the suit land on 4th July 2014, a few days before the suit ELC 150/2014 was filed. There is no reason why he was not joined as a party to the suit.
46. The Appellant had substantive rights and interests to the suit land as the registered owner and not as an agent or servant of the person from whom he had purchased the land. Section 24 (1) of the Land Registration Act defines the interests a person is conferred by registration of land.
“The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and
Section 25 (1) provides details of the rights conferred to the proprietor of land and states that;
The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
47. The Appellant’s proprietary rights in the suit land were not curtailed by the court order since the persons injuncted were the 2nd, 3rd and 4th Respondents herein. Indeed, the court is of the view that the said Respondents agreed to confirm the order of injunction by consent, probably because they no longer had any interests in the land.
48. Ancillary to the issue under consideration herein is the question of whether the 1st Respondent herein followed the correct procedure in filing a separate suit for compensation for demolition of the suit houses on the ground that the said demolition was in contravention of a court order. This court is of the view that the proper procedure the 1st Respondent ought to have followed was filing an application citing the Respondents for contempt of court within the same suit where the order of injunction was issued.
49. This view is supported by the provisions of Order 40 Rule 3 of the Civil Procedure Rules, which states that;
(1) In cases of disobedience or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release. 97 Civil Procedure Rules (Legal Notice 151 of 2010) Kenya
(2) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto.
(3) An application under this rule shall be made by notice of motion in the same suit.
50. The foregoing rule provides that an application for contempt of court under Order 40 shall be made in the same suit. Further, the rule provides that the court hearing an application for contempt of court can award such compensation as it thinks fit and order that the property of the person who is in breach be attached and sold.
51. Further to this, if an application citing the Respondents for contempt of court had been properly made, the court would have considered all factors relevant in determining whether an alleged contemnor is guilty of contempt of court or not. This would have included issues of whether or not there was service of the order. Lenaola J (as he then was) in the case of Kariuki & 2 others v Minister for Gender, Sports, Culture & Social Services & 2 others [2004] eKLR quoted thus:
Briefly, the effect of these provisions is that, as a general rule, no order of court requiring a person to do or refrain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. The copy of the order served must be indorsed with a notice informing the person on whom the order is served that if he disobeys the order, he is liable to the process of execution to compel him to obey it."
52. Further, the procedure for dealing with an application for contempt of court was restated when the Contempt of Court Act was declared unconstitutional by the Court in the case of Kenya Human Rights Commission v Attorney General & another [2018] eKLR. Since then, the law that governs contempt of court proceedings is the English law applicable in England at the time the contempt was committed, as quoted above. Rule 81.4 of the English Civil Procedure Rules (Amendment No. 3) Rules, 2020 provides in detail for the requirements of a contempt application.
53. This court is of the view that the trial court proceeded with the determination of the issue of whether or not the 1st Respondent was entitled to an award of damages for demolition of his houses as though the court was hearing an application for contempt of court. The trial court stated that “court orders are not to be taken as suggestions by litigants and must be complied with” The trial court cited the case of Mike Maina Kamau versus The Attorney General (2017) Eklr.
54. This court agrees with the trial court’s view on the grave consequences of disobedience and noncompliance with court orders. However, this court finds that the trial court erred in treating the matter before it as though it were an application for contempt of court, which was in clear contravention of the procedure provided under Order 40 Rule 3 of the Civil Procedure Rules and other provisions of the law.
55. Without following the correct procedure in hearing an application for alleged contempt of court by the Appellant, the Trial Court did not establish the elements required to be met before proceeding to find the Appellant to have been in contravention of the court order. The court is thus of the opinion that the trial court erred in this regard.
56. The Appellant further complained that the fact of violation of a valid court order was not pleaded in any pleadings, the subject matter of the consolidated suits before the trial court.
57. The court has looked at all the pleadings and noted that in Karatina PMCC No. 41/2018, the Plaintiff pleaded at Paragraph 4 of the Plaint as follows:
“The Plaintiff avers that without lawful cause or jurisdiction and illegally, the Defendant on diverse dates between 18th May 2018 and 29th May 2018 demolished the suit rental premises”
58. The Court considers the above averments in the Plaint as adequate pleading, noting that the details of the illegality, lack of lawful cause, unlawfulness and lack of jurisdiction are explained in the Plaintiff’s witness statement filed together with the Plaint. In the witness statement and the evidence adduced before the court, the Plaintiff gave details of the Court Order. Further, the Defendant, in his witness statement, denied having been served with the court order.
2) Whether damages awarded by the trial court were special damages and were required to be specifically pleaded and strictly proved, and whether the trial court erred in making the award.
59. On this issue, the court has looked at Karatina Principal Magistrate’s Court CMELC Case 41 of 2018, where the 1st Respondent herein pleaded in his Plaint that as a result of the demolition of the suit rental premises, he suffered loss, details of which are in the report and valuation dated 6th June 2018. He claimed that the said valuation report was attached to the Plaint and formed a schedule to the claim.
60. The Court has looked at the Plaintiff''s statement, which states at Paragraph 5, "Owing to the said acts by the Defendants, the Plaintiff avers that he has suffered and continues to suffer loss – Particulars of Loss/Damages.
a) Destruction of the suit rental premises with loss as per the Report and valuation in respect thereof dated 6th June 2018, attached hereto and forming a schedule to the claim
b) Loss of rental income as assessed in the Report and Valuation in respect thereof dated 6th June 2018, attached hereto and forming a schedule to the claim at the rate of Kshs.27,000 per month"
61. The court notes that there was no schedule to the Plaint. The Valuation Report was attached to the Plaintiff’s List of Documents dated 12th June 2018.
62. The Applicant claimed that the particulars of this loss amounted to special damages and the same ought to have been particularised in the Plaint and proved strictly. He relied on the case of Ouma v. NCC (Supra), which stated as follows –
"Here, it simply means that for special damages to be awarded, they must be pleaded and proved.
Thus, for the Plaintiff to succeed on a claim of special damages, he must plead it with sufficient particularity and must also prove it by evidence."
The Appellants’ Counsel argued that the sum awarded was not pleaded as required by law.
63. The Court has considered the provisions of Order 4, Rule 2 of the Civil Procedure Rules, which provide for particulars that are to be contained in a money suit, stating that:
(1) Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed, except where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant.
64. It is trite in law that special damages must be specifically pleaded and proven. A claim for special damages is made to recover specific, quantifiable financial losses that a claimant has incurred as a direct result of another party''s actions. Unlike general damages, which are awarded for subjective losses like pain and suffering, special damages must be specifically itemised, pleaded in court documents, and strictly proven with supporting evidence such as receipts.
65. In the Court’s view, what the 1st Respondent was claiming were special damages for property damaged and/or demolished as a result of what he considered to be the Appellant’s acts. The 1st Respondent filed the Report and Valuation by Rwingo Valuers dated 6/5/2018, seeking compensation for structural developments on Plot No.Konyu/Baricho/4211. The sum of Kshs. 534,000= was stated to be for “the fair Depreciated Capital Cost of the construction of the structural developments on Plot No.4211 prior to their demolition (which took place between 18th – 29th May) for compensation purposes.” The Valuer also assessed the loss of monthly rental income from the demolished 19 single rental rooms at Kshs. 27,000= with each room being rented at Kshs 1,500= per month. From the above, the specific amount claimed by the 1st Respondent was clearly known to him before filing the suit for compensation, but was not stated in the Plaint.
66. Counsel for the 1st Respondent relied on the authority of Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, in which Kimaru, J (as he then was) held that:
"In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage, whether pecuniary or non-pecuniary. If damages are special damages, they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial, it must be a sum that has actually been spent or a loss that has already been incurred…"
67. In the Court’s view, attaching the Valuation Report to the List of Documents does not satisfy the requirement to specifically plead special damages. Order 3, Rule 2 of the Civil Procedure Rules provides for documents to accompany a suit and states that –
All suits filed under rule 1(1), including suits against the government, except small claims, shall be accompanied by—
(d) copies of documents to be relied on at the trial, including a demand letter before action:
68. The Court is satisfied that the 1st Respondent’s claim was for special damages for financial loss that had already been incurred before filing the suit and had been quantified. The amount ought to have been specifically pleaded and stated in the Plaint. On this issue, the court finds that the trial court erred in making an award of special damages without the same having been specifically pleaded.
69. Another related issue that arose in the Grounds of Appeal and in submissions was whether the Trial Magistrate erred in not considering that parties are bound by their pleadings.
70. It is trite in law that parties to a suit are bound by their pleadings. This means that the case must be decided based on the facts and claims presented in the pleadings, and parties cannot introduce new issues or evidence that contradicts their original pleadings. Adherence to pleadings ensures a fair process, allowing each side to prepare and know the case they need to meet, thereby avoiding surprise. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as follows:
11.It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was reaffirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR.
71. In The Supreme Court of Kenya, at Nairobi (Coram: Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ) Petition 15(E022) OF 2021 -Evans Muriuki Muthuuri & Others Versus Attorney General & Others, the court stated as follows;
[48] The short answer to the first question regarding the jurisdiction of the ELRC to entertain the dispute is that, apart from the fact that the respondents have not cross-appealed this issue, we note that this question is being introduced for the first time before us. It was neither raised in the ELRC nor determined by the Court of Appeal. The general rule is that parties are bound by their pleadings. However, a court may make a determination on an unpleaded issue where, in the course of the hearing, parties have canvassed the issue and left it to the court to determine. See Odd Jobs v. Mubia [1970] EA 476. This was not the case here. We cannot, in those circumstances, consider or determine the question in vacuo without the benefit of the opinions of the learned Judges of the two superior courts below. Both objections must therefore fail"
3) Whether the trial court erred in awarding damages to a trespasser.
72. The trial court found on the issue “Who is the rightful owner of L.R. NO. KONYU/BARICHO/4211,” that the Appellant herein is the legal and rightful proprietor of the suit land. This finding was not challenged on appeal, and thus the Appellant’s title remains absolute and indefeasible as per section 26 of the Land Registration Act. According to the evidence adduced in court, the Appellant was issued with the title deed to the land on 4th July 2014, while the demolition is said to have occurred between 18th and 29th May 2028.
73. The Court of Appeal sitting at Eldoret elaborated on the ingredients of the tort of trespass in the case of Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR, cited with approval the following authorities:
In M’Mukanya v M’Mbijiwe (1984) KLR 761, the ingredients of the tort of trespass were revisited by this Court and restated as follows:
“Trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land, which is different from ownership (See Thomson v Ward, (1953) 2QB 153."
Further, in Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition, at page 428 states as follows:
“Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sufficient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he has the right to possession.
74. The court is of the view that since the Appellant was found to be the lawful owner of the suit land, having been issued with a title deed, he had proved that he had a right to possession of the land.
75. The law defines land under Article 260 of the Constitution of Kenya and restates the same definition under the Land Act and the Land Registration Act as;
“land” includes— (a) the surface of the earth and the subsurface rock; 159 Constitution of Kenya, 2010 (b) any body of water on or under the surface; (c) marine waters in the territorial sea and exclusive economic zone; (d) natural resources completely contained on or under the surface; and (e) the air space above the surface;
76. In the Court''s view, the 1st Respondent did not prove that he had a right to maintain possession and/or ownership of the structures on the suit land while the Appellant held legal ownership of the land itself.
77. Notwithstanding the finding that the 1st Respondent was not entitled to retain possession of the structures within the land, the said respondent was entitled to protection under Section 152 (B) of the Land Act, which states that an unlawful occupant of land shall only be evicted in accordance with the Land Act.
78. Section 152 E provides for the issuance of an eviction Notice to unlawful occupiers of private land and states that:
(1) If, with respect to private land, the owner or the person in charge is of the opinion that a person is in occupation of his or her land without consent, the owner or the person in charge may serve on that person a notice of not less than three months before the date of the intended eviction.
(2) The notice under subsection (1) shall—
(a) be in writing and in a national and official language;
(b) In the case of a large group of persons, be published in at least two daily newspapers of nationwide circulation and be displayed in not less than five strategic locations within the occupied land;
(c) specify any terms and conditions as to the removal of buildings, the reaping of growing crops and any other matters as the case may require; and
(d) be served on the deputy county commissioner in charge of the area, as well as the officer commanding the police division of the area.
79. The Appellant herein claimed that he purchased the structures on the suit land belonging to the Vendor, the 2nd Respondent. However, on this question, the court agrees with the trial court that the structures were constructed by the 1st Respondent and not by the 2nd Respondent. The court stated that –
“The other defence witness also admitted that the Plaintiff had erected residential houses. Of more importance is the testimony of the 3rd Defence witness who had cohabited with the Plaintiff and confirmed that the Plaintiff had built 19 residential houses, which she collected rent from, and later the Plaintiff declined to offer the rent."
80. From the foregoing, it is clear that even a trespasser is entitled to protection of the law when it becomes necessary to remove them from the land they unlawfully occupy. The 1st Respondent was therefore entitled to recourse before the court if the removal from the suit land did not follow the procedure set out in the law.
81. The 1st Respondent approached the court with his grievance; however, as earlier found by this court, he failed to specifically plead the amount of compensation he sought, even though the amount was known to him at the time when he filed the suit or even at the time of the hearing.
82. The exercise of judicial discretion in an appeal was discussed in Price and Another v Hilder [1996] KLR 95, quoted by Aburili J in the case of Ojwang v Kara & another (Civil Appeal E097 of 2023) [2024] KEHC 3131 (KLR) (28 March 2024) (Judgment) as follows:
"In considering the exercise of judicial discretion, as to whether or not to set aside a Judgment, the court considers whether, in the light of all the facts and circumstances, both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the Judgment. The court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision."
83. In this particular case, the court has considered all the facts and circumstances of this case and the merits thereof and finds it is a proper case to interfere with the award made by the trial court.
Who will bear the Cost of the Suit?
84. On the question of who bears the costs of the suit before the trial court and the appeal before this court, the court has considered the provisions of Section 27 of the Civil Procedure Act, which states that the costs of a suit are at the discretion of the court. The court found in this appeal, as did the trial court, that the structures on the land were constructed by the 1st Respondent and were demolished without following the procedure laid down in law. The award made by the trial court was quashed on the ground that the same was not specifically pleaded as provided by law. In the above circumstance, the court is of the view that, in the interests of justice, each party ought to bear their own costs of the suit before the trial court and the appeal herein.
Court’s Decision
85. The final decision of the court is that the appeal herein has merit, and the following orders are made;
(1) The Appeal is allowed.
(2) The Judgment of the trial court, Honourable E. Kanyiri, Principal Magistrate SPM, dated 27th February 2023, is hereby set aside and in place thereof, is substituted with an order dismissing the 1st Respondent/Plaintiff’s suit with costs awarded to the Appellant.
(3) Each party will bear his/her own costs of the suit before the trial court and this appeal.
Delivered, Dated and Signed at Nyeri on the 14th day of October, 2025
Judgment delivered in open court in the presence of-
Ms Kendi - Court Assistant
Wangari holding brief for the Appellant
No attendance for the 1st Respondent
No attendance for 2nd, 3rd and 4th Respondents