Regena v. Mohamed (PC) Civ. App. 107-D-71; Aug. 1971; Mwakasendo, Ag. J.

Regena v. Mohamed (PC) Civ. App. 107-D-71; Aug. 1971; Mwakasendo, Ag. J.

The appellant claimed damages from the respondent for destroying crops she planted on land she alleged was allocated to her by one Omari Athumani. Both the primary and district magistrate courts found that the land allocated to the appellant was not the disputed land and that the appellant had trespassed on the respondent’s land. They, therefore, concluded that she was not entitled to compensation for the crops destroyed by the respondent.

            Held: (1) “Now while in principle it is true that a person who trespasses on another man’s land does so at his own risk. I do not think this rule can be used as a vehicle of oppression or of willfully injuring another person. Before an occupier can take advantage of the operation of the rule he must have demonstrated by word or action that he disapproved of the trespasser’s intrusion into his land. There must be an open protest and disapproval of the trespasser’s actions before the occupier of the land can deprive the trespasser of his entitlement to compensation for improvements carried out on the land. This was clearly the view held by the Central Court of Appeal in Mtumbo d/o Sekwande v. Maina-Hela d/o Semkini, Appeal No. 5 of 1955, where the Court said:- “A person who cultivates another person’s land after having been refused permission by the latter to use the land does so at his own risk. If the lawful occupier subsequently discovers the action of the trespasser, such trespasser can have no claim to the crops which he has planted or other unexhausted improvements which he has effected on that land.” With respect, the principle onunciated here is sound and, in my judgment, a correct view of the law. And applying this principle to the facts of the present case there can be little doubt that the appellant was entitled to some compensation for the crops she had planted on the land in dispute. On the evidence on record it is not in dispute that the respondent did not at any time protest against the appellant cultivating and planting on his land. Although he could have stopped her cultivating the piece of land in question he did not do anything about it until very late, when the appellant was about to harvest her crops. Would such a person who has clearly acquiesced in the trespass be justified in willfully destroying the trespasser’s crops? I do not think he should be allowed to do so. If he does as the respondent did in the instant case, he shall in equity be made to compensate the injured party for the damage caused. Denying the appellant her rightful entitlement to compensation would in my view amount to countenancing the respondent’s reprehensible and destructive acts. This court cannot and will not countenance any such conduct on the part of the respondent ….. (2)Appeal dismissed.