Limited [1968] EA 424andSelle & another –vs- Associated Motor Boat Company Ltd. & others[1968] EA 123. - Page 4/7
MWITA MERENGO V JOSEPH TUNEI MARWA & 2 OTHERS[2012]eKLR17. On 12thFebruary 2012 both counsel recorded a consent to argue this appeal by way of writtensubmissions. I have carefully read through the submissions and also considered the authorities cited.18. Upon reading the above grounds of appeal 3 questions ring in my mind:1)Did the learned trial magistrate error in law of procedure, practice and evidence in record"2)Did the learned trial magistrate error in law in failing to appreciate that the plaintiff had dulyproved all the requisite ingredients of the tort of trespass to land, nuisance and tort of Rylands andFletcher.3)Did the learned trial magistrate error in law relating to damages in failing to assess thedamages payable and in failing to award the proven special damages"19. With regard to the first question, it is an undisputed fact that the plaintiff tendered in a report bythe Ministry of Roads and Public Works showing that cost of repairs of his house amounted toKshs.43,701/=. The report was signed by one Vitalis Wamburo. The authenticity of the said report isquestionable especially owing to the fact that the said author of the report was never called by theappellant as an expert witness to tender in such evidence and also by the fact that PW2’s testimony didnot support the appellant’s testimony as to the extent of damage to the appellant’s house. PW2 said thatonly the walls of the house were damages, while the appellant on the other hand testified that his housewas damaged extensively. It is to be noted that PW2 was in court when the appellant tendered hisevidence, so that if there was any truth in what the appellant said regarding the extent of the damage, toappellant’s house, such a detail would not have escaped PW2’s ear. In any event, the testimony of PW2was not consistent and he contradicted himself in one and the same breath. While PW2 stated that the1stRespondent was present when the tree was being cut, other evidence on record shows that the 1strespondent was not in his home when the tree was being cut. On the whole, there was no evidence tosupport the appellant’s claims.20. With regard to the second issue, I am persuaded that the appellant did not prove his claims innuisance on a balance of probability. As already stated, it is doubtful whether the tree was cut by the 1stappellant. Further, and as rightly pointed out by the trial court, the appellant neither identified his plotnumber nor did he plead that the 1strespondent was negligent in the manner he cut the tree or at all nordid he give any such particulars. Nor did the appellant plead strict liability. For reasons, I find no basis forinterfering with the findings of the trial court. The appellant was under a duty to prove that the 1stRespondent owed him a duty of care, that there was breach of the said duty and that as a result of the
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