Court of Appeal sets aside the award of exemplary damages of Kshs 15,000,000 and general damages for trespass of Kshs 500,000 for not being oppressive, arbitrary or unconstitutional

Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR

Civil Appeal No. 106 of 2015

Court of Appeal at Eldoret

HM Okwengu & J Mohammed, JJA

April 3, 2020

Reported by Kakai Toili

Civil Practice and Procedure – damages - purpose of  awarding damages -  factors to be considered in the assessment of damages - ordinary vis a vis exemplary damages - distinction between ordinary and exemplary damages - circumstances in which exemplary damages could be awarded.

Jurisdiction – jurisdiction of the High Court – appellate jurisdiction  - jurisdiction to interfere with the amount of damages awarded by a trial court - what were the circumstances in which the High Court could interfere with the amount of damages awarded by a trial court.

Tort Law – trespass – trespass to land - what was the nature of the tort of trespass to land.

Brief facts

The respondent was the registered proprietor of the suit property. The respondent was desirous of undertaking developments-cum-renovations on the suit property and the buildings erected thereon. However, the respondent claimed that the appellant threatened the respondent that all structures erected on the suit property would be demolished. The respondent further claimed that the said threat was unlawful and wholly infringed on his right to ownership of the suit property. The respondent claimed that he sought an explanation from the appellant regarding the demolition notice issued to him but he did not receive a response. The respondent lodged a claim against the appellant seeking among others a declaration that the appellant was a trespasser on the suit property and that the appellant’s conduct was illegal and a mandatory injunction against the appellant to cease from laying any claim on the suit property. In April 2005, the appellant’s employees demolished the structures erected on the suit property.

The appellant denied that the respondent was the registered proprietor of the suit property and claimed that it was entitled to demolish the structures on the suit property as the suit property had been approved for a service petrol station only; that the respondent’s application to change the user of the suit property to business was rejected and the rejection communicated to him; that the respondent constructed buildings and other structures without the appellant’s approval; that the respondent was given ample notice to voluntarily remove all illegal structures but he did not heed the notice; that the appellant was not aware of a court order stopping the demolitions. The trial court found in favour of the respondent and awarded the respondent Ksh. 15,500,000 comprising of Kshs. 500,000 as general damages for trespass and Kshs. 15,000,000 as exemplary damages. Aggrieved by the trial court’s judgment, the appellant filed the instant appeal.

Issues

1. What were the circumstances in which the High Court could interfere with the amount of damages awarded by a trial court?
2. What was the purpose and factors to consider in of awarding and assessment of damages?
3. What was the distinction between ordinary and exemplary damages and in what circumstances could exemplary damages be awarded?
4. What was the nature of the tort of trespass to land?

Held

1. Being a first appeal, the duty of the court, was to reconsider the evidence, evaluate and draw its own conclusion though it should bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. An appellate court should only be inclined to disturb the findings of a trial court as to the amount of damages where it was convinced either that the trial court acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it an entirely erroneous estimate of the damage to which the plaintiff was entitled. 
2. The purpose of damages was to give a plaintiff compensation for the damage, loss or injury that he had suffered. The general rule regarding the measure of damages was that the injured party should be awarded a sum of money so as to put him in position which was the same or nearly as close to the position he would have been had he not sustained the injury or loss.
3. The court when awarding damages at large was making a general award and it could take into account factors such as malice or arrogance on the part of the defendant which was regarded as increasing the injury suffered by the plaintiff as for example by causing him humiliation or distress.
4. Exemplary damages were essentially different from ordinary damages. The object of damages in the usual sense of the term was to compensate. The object of exemplary damages was to punish and deter. The categories of cases in which exemplary damages could be awarded were:-
   1. in cases of oppressive, arbitrary or unconstitutional action by the servants of the government;
   2. cases in which the defendant’s conduct had been calculated to make a profit for himself which could well exceed the compensation payable to the plaintiff; and
   3. where exemplary damages were expressly authorized by statute.
5. The appellant had vide its letter of December 21, 1998 confirmed its approval for the change of user in respect of the suit property to petrol station subject inter alia to demolition of any structures affecting the proposal and construction of roads, sewer water mains to the satisfaction of the municipal engineer. Further, the respondent conceded that the appellant duly notified him of its intention to demolish the buildings erected on the suit property. The respondent had notice that he was using the property for an unapproved purpose. The demolition of the building erected on the suit property did not contravene any statute and was in fact sanctioned by statute. The respondent had due notice of the demolition and the demolition was carried out in accordance with the Physical Planning Act. The appellant’s conduct was not oppressive, arbitrary or unconstitutional to justify an award of exemplary damages as a measure of punishment.
6. Trespass was a violation of the right to possession and a plaintiff had to prove that he had the right to immediate and exclusive possession of the land which was different from ownership. Trespass to land, like the tort of trespass to goods, consisted of interference with possession. Mere physical presence on the land did not necessarily amount to possession sufficient to bring an action for trespass. It was not necessary that the claimant should have some lawful interest in the land. That was not to say that legal title was irrelevant, for where the facts leave it uncertain which of several competing claimants had possession, it was in him who could prove title that could prove he had the right to possession. In the absence of evidence to the contrary, the owner of land with the paper title was deemed to be in possession of the land. The respondent could not claim damages arising from trespass against the appellant
7. The assessment of damages was a discretionary relief. Damages had to be fair to both the claimant and the state. In considering what was fair to both, a court could take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests.

Appeal allowed; the award of exemplary damages of Kshs 15,000,000 and general damages for trespass of Kshs 500,000 set aside; appellant awarded the costs of the appeal.

Editorial Note: The judgment was decreed in accordance with rule 32 (3) of the Court of Appeal Rules which provides that in civil applications (other than applications heard by a single judge) and civil appeals, separate judgments shall be given by the members of the court unless, the decision being unanimous, the presiding judge otherwise directs, but where one judge delays, dies, ceases to hold office, or is unable to perform the functions of his office because of infirmity of mind or body, separate concurring judgments may be given by the remaining members of the court.