Trespass as a wrong has a very wide application. It could mean unlawful presence in another's closure or land or premises, offence to the body of a person or even mean wrongful taking of goods or chattels . To constitute the wrong of trespass, neither force nor unlawful intention not actual damage nor breaking of an enclosure is necessary. Every invasion of private property, be it ever so minor is a trespass.
Trespass may take any of the following three forms:
1. Trespass to land.
2. Trespass to person, and;
3.Trespass to goods.
TRESPASS TO LAND
Trespass to land may be committed by any of the following acts: -
a). Entering upon the land or property of the plaintiff
b). Continuing to remain in such land or property on expiry of license i.e. Permission to be in it.
c). Doing an act affecting the sole possession of the plaintiff, in each case without justification.
d) By throwing objects into another‟s land.
e) By using the right of entry for purposes other than for which it was allowed.
Generally, trespass to land is a civil wrong. However it may give rise to criminal proceeding;
For example: Under the Trespass Act (Cap 294), a trespasser can be prosecuted for a criminal offence if he enters on somebody's land with intent to steal goods or commit any other offence. It is important to note that trespass to land is actionable per se, that is, without proof of special damage. In other words, it is not a defense that no damage has been caused by the trespass.
Following are explanations to the elements of trespass:
1. Entry as an essence to constitute a trespass. A man is not liable for involuntary entry but intentional entry, even though made under mistake. E.g. if in mowing in his own land a man inadvertently allows his blade to cut through into his neighbors' field, he is guilty of trespass. Public streets including pavements e.t.c are primarily dedicated for public use for the purpose of passage and cannot be used as though it is private residence. Thus an excess of ordinary user of highway amount to trespass.
2. If a person who has lawfully entered on the land of another remains there, after his right of entry has ceased he shall then be committing trespass.
3. Every interference with the land if another e.g. throwing stones over a neighbors land is deemed to be constructive entry amounting to trespass, much as driving a nail into another walls, planting trees on his land e.t.c These are actionable per-se whereas private nuisance is actionable only with proof of damage.
The owner of land is entitled to the column of air space above the surface ad- infinitum for ordinary use and enjoyment, and anything down to the center of the earth. In principle, every continuance of a trespass is afresh trespass and an action may be brought of it. An action may be brought for the original trespass in placing an encumbrance on the land and another action for continuing the structure being so erected. It therefore follows that a recovery of damage in the first action by way of accord and satisfaction does not operated as purchase of the right to continue in the injury. Trespass by a man's cattle, sheep, poultry etc is dealt with similar to trespass committed by the owner personally.
Remedies for Trespass to land.
1. Defense of property: He may have to use force till he gets possession but not unnecessary amount of force of violence. This is called remedy of ejection.
2. Expulsion of trespasser especially in case of continued trespass.
3. Distress damage feasant: He may seize and retain them impounded as a pledge for the redress of the injury sustained.
4. Damages: This means recovery of monetary compensation from the defendant.
5. Injunction: This may be obtained to ward off a threatened trespass or to prevent a continuing trespass.
6. Action for recovery of Land: In case the plaintiff is wrongfully dispossessed of his land he can sue for the recovery of the land from the defendant.
Defenses against Trespass on land.
1.Statutory authority: Where the law allows entry upon land.
2.Entry by license: Where entry is authorized by land owner, unless authority is abused.
3.Adverse possession: Where land has been peacefully possessed for over 12 years without disturbance.
4. Act of Necessity: Example is entry to put off fire for public safety is justifiable.
5.By order of court of law: This may be in execution of court order e.g. by court brokers.
6.Self defense: a trespasser may be excused as having been done in self defense or in the defense of a person‟s goods, chattels or animals.
7.Re-entry on land: A person wrongfully dispossessed of land may re-take possession of it if it‟s possible for him to do so peacefully and without the use of force. In this case, he will not be liable for trespass to land.
8. Re-taking of goods and chattels: if person unlawfully takes the good and chattels of another upon his own land, he impliedly licenses the owner of the goods to enter his land for the purpose of recaption.
TRESPASS TO PERSON
Any direct interference with the person (body) of another is actionable in the absence of any lawful justification. Trespass to person includes assault, battery and false imprisonment.
Assault means conduct or threat to apply violence on the person of the plaintiff in circumstances that may create apprehension that the latter is in
real danger. It is committed when a person threatens to use force against the person of another thus putting the other person in fear of immediate danger.
Examples: Shaking of fist, pointing o a gun menacingly at another, letting go a dog fiercely etc. It is important to note that not every threat amounts to assault. There must be the means of carrying out the threat and the capacity to effect the threat. The person threatened must be put in fear of immediate danger. An assault is a tort as well as a crime. The intention as well as the act makes assault. Mere words do not amount to assault unless it gives the user‟s gesture such a meaning as may amount to assault.
Battery means the actual application (use) of force against the person of another without lawful justification. It is immaterial whether the force is applied directly or indirectly to the person. But there must be actual bodily contact between the plaintiff and the defendant.
Examples: - striking of another person or touching another person in a rude manner, pouring water on or spitting on another person. Assault and battery is actionable per-se (damage does not have to be proved).
False imprisonment means total restraint or deprivation of the liberty of a person without lawful justification. The duration of the time of detention is immaterial. False imprisonment may be committed even without the plaintiff's knowledge e.g. by locking him up in his bedroom while he is asleep and then reopening the door before he has awoken In such a case the plaintiff may still sue, (Meering vs. Graham-white Aviation Co. Ltd (1919)122 L.T.44). It is not however necessary that the person‟s body should be touched. A person is not only liable for false imprisonment when he directly arrests or detains the plaintiff, but also when he actively promotes or causes the arrest or detention of the person.
Defenses to assault battery & false imprisonment
a). Volenti non-fit injuria: A person who has voluntarily consented to come into actual bodily contact with another e.g. in sports, etc cannot later complain against another person who touches him in the course of playing the game.
b). Private defense: A person is within his legal rights to defense himself, his property or his family. But he must use reasonable force in doing so.
c). Legal authority: A police officer has statutory authority to arrest a person in the preservation of public peace. Here reasonable force may be used to effect such arrest.
d). Forceful entry; The rightful owner of property is entitled to use reasonable force to prevent forcible entry on his land or to repossess his land or goods, which are wrongfully in the possession of another.
e). Parental authority: People such as parents, teachers, etc can inflict reasonable punishment for the correction and benefit of the children.
Thus a parent exercising parental authority can chastise or even lock-up a child reasonably without being guilty of assault, battery or false imprisonment , nor would a school-teacher.
TRESPASS TO GOODS
A person can sue for trespass to goods where there is wrongful interference with goods, which are in his possession. Such interference includes wrongful conversion, actual taking of or a direct and immediate injury to the goods. The tort of trespass to goods is meant to protect personal property. To constitute the tort of trespass to goods, the plaintiff must show: -
1. That at the time of trespass, he had the possession of the goods.
2. That his possession had been wrongfully interfered with or disturbed.
Trespass to goods are of three categories namely: -
1. Trespass to chattels.
2. Goods Detenue and;
Trespass to Chattels
It means interference with goods, which are in the actual or constructive possession of the plaintiff. It may involve:
- Removal of goods from one place to another,
- Using the goods or;
- Destroying or damaging the goods wrongfully. For an action to be sustainable:
- The trespass must be direct.
- The plaintiff must be in possession of the chattel at the time of the interference.
- The tort is actionable per-se.
This means wrongful withholding or detention of goods from the person entitled to their immediate possession.For example: If A lends his book to Band B refuses, to return it to A, A is said to have committed the tort of Detenue.
This means dealing with goods in a manner that is inconsistent with the right of the person in possession of them. This tort protects a person‟s interest in dominion and control of goods. The plaintiff must be in possession or have the right to immediate possession. For example: If A intentionally sells B's goods to C without any authority from B, A is guilty of conversion. Acts of conversion may be committed when property is wrongfully taken, parted with, sold, retained, destroyed or the lawful owner‟s right is denied. Defenses to trespass to goods. Limited defenses are available to a defendant against a wrong to goods. The defendant, however, can claim the right of lien. He may also claim other general defenses like statutory or judicial authority.
Remedies to trespass to goods.
i. Recaption: The plaintiff can recapture his goods that have been wrongfully taken away from him provided he uses reasonable force.
ii. Order for specific restitution: The court may also order for specific restitution of the goods where damages is not adequate a remedy.
iii. Damages: The plaintiff is entitled to claim the full value of the goods and damages for any inconvenience suffered by him.
At common law, an occupier owns a common duty of care to his invites or invitee while within their premises and is generally liable for any injury to them or damage to their goods by reason of condition to their premises. The law relating to occupiers liability in Kenya is contained tin the Occupiers
Liability Act Cap 34 laws of Kenya.
The object of the Act was to amend the law relating to liability of occupiers and to others for injury or damages resulting persons or goods lawfully on any land or other property. Under the Act, an occupier owes a common duty of care to all invitees and their goods. However the common duty of care may be modified or restricted by agreement.
The Act abolishes the old distinction between licensees and invitees, and now calls such persons visitors. This however does not include trespassers.
Under Section 3(2) of the Act, common law duty of care means “a duty to take such care in all the circumstances of the case as is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose in which he is invited or permitted to be there” The court will consider the following in determining if there was this common law duty of care:
-Whether the invitee is a child, the occupier must be prepared to take children to be less careful than adults.
-Whether the invitee was exercising his calling under the Act, an occupier may expect that a person in exercise of his calling will appreciate and guard against any special risk ordinarily incidental to the calling if the occupier permits him to do so.
The occupier is not liable where the accident occurs through the defective work of an independent contractor provided he can establish that the contractor was efficient as far as he was able and that he had inspected the work done.
An occupier may escape liability if the injury or damage is occasioned by danger of which the occupier had warned the invitee.
The occupier may escape liability in respect of any damages caused to the invitee if occasioned by the fault of an independent contractor.
The common duty of care does not impose on an occupier any obligation in respect of risks willingly accepted by the invitee.
The occupier owes no common duty of care to trespassers and is not liable for any injury or damage they may suffer while in his premises.