INTENTIONAL INTERFERENCE

WITH PROPERTY
 A. TRESPASS TO GOODS OR
CHATTELS
• consists in committing without lawful
justification any act of direct interference with
goods in the possession of another person.
• There must be some direct and physical act by
which the chattel is moved from its place or is
otherwise affected.
• Any unauthorized touching or moving of an
object is actionable at the suit of the
possessor even though no harm arises.
• see e.g. Kirk v Gregory (1876) 1 Ex. D 55 the
plaintiff as the executor of a deceased person
sued the defendant for recovery of certain
rings. The defendant alarmed by the fact that
the deceased’s servants were feasting and
drinking in the house moved the rings from
one room to another, in the mistaken but
genuine belief that it was necessary to do so.
The rings got lost and the defendant was held
liable for the loss.
• Simiyu v Sinino [1983] KLR 683 D wrongfully
attached property belonging to P in pursuit of
an execution process. The attachment was
wrongful since the person against whom
execution was sought was never a party to the
suit; there was trespass to chattels
• See also Nthenge v Wambua [1984] KLR 799
 B. CONVERSION

• a tort related to trespass to chattels-entails

the defendant disposing of the goods or
dealing with them in such a way that neither
he nor the owner of the goods has any further
possession of them e.g. by consuming or
destroying or selling or otherwise delivering
them to a third person.
• 2 elements must exist: 1) dealing with the
chattel in a manner inconsistent with the right
of the person entitled to it and 2) an intention
in so doing to deny that person’s right
Acts of conversion include:

• Taking
• Detention
• Wrongful delivery
• Conversion by estoppel
 1. Taking
• a person who without lawful justification takes a
chattel out of the possession of another with the
intention of exercising permanent or temporary
dominion over it is liable in conversion.
• See Atogo v Agricultural Finance Corporation &
another [1991] KLR 521 def attached and sold the
pl’s m/v on account of a debt owed to it by the pl’s
step-brother. D had made an inventory of the
debtor’s property that wrongly included pl’s m/v as
part of the attached assets. Hancox J stated that:
“There can be no doubt that a wrongful taking of
another person’s goods constitutes the tort of
• mere taking without intention to exercise such
dominion is no conversion e.g. moving an item
from place to place without seeking to assume
possession of it or to deprive the owner of its
possession is no conversion.
• See Fowldes v Willoughby (1841) 8 M & W
540the plaintiff boarded the defendant’s ferry
boat intending to cross from one shore of a
river to the other. He had two horses with
him. The defendant asked him to remove the
horses from the ferry and put them ashore.
• When the plaintiff refused the defendant
removed the horses. The plaintiff did not
disembark and was conveyed across the river.
It was held that the mere act of removing the
horses from the boat though wrongful and
actionable as trespass did not amount to
conversion.
2. Detention

• detaining someone’s goods will amount to

conversion only when it is adverse to the
owner or another person entitled to
possession-i.e. the defendant must have
shown the intention to keep the thing in
defiance of the plaintiff.
• E.g. a finder of a lost chattel cannot be sued in
conversion unless by refusing to give it up or
in some other way he shows an intention to
detain adversely to the owner.
• In Parker v British Railways Board [1982] QB
1004 it was held that one who found a gold
bracelet lying on the floor of an airport was
entitled to keep it.
• If the article is however found attached to or
lying under the surface of the land, the owner of
the land has priority over finder. In London
Corporation v Appleyard [1963] 1 WLR 982 a
safe containing banknotes was found by two
workmen in the basement wall of a house they
were demolishing. The lessee of the premises
was held to have priority over the workmen.
• Frederick N Wamalwa v John Ongeri 2005]
eKLR, P leased out a trailer to D at an agreed
monthly cost. D however breached his part of
the agreement by refusing to make the
monthly payments as set out in the subject
agreement. He however continued to use of
the trailer and even leased it out to a third
party. It was held that P was entitled to
recover either the trailer or in lieu thereof the
value as at the date of the agreement.
3. Wrongful delivery

• a person who without lawful justification deprives

another person of his goods by delivering them to
someone else is liable in conversion.
• In Hollins v. Fowler (1875) LR 7 HL 757 a rogue
obtained Fowler’s cotton and offered it for sale to
Hollins, a broker. Hollins sold and delivered it to a
company called Micholls & Co who converted it
into yarn i.e. fiber. Hollins paid the rogue who
promptly disappeared. It was held that Hollins
was liable in conversion to Fowler even though he
had acted in good faith and obtained only a
broker’s commission from Micholls & Co.
 Mohamed v Attorney General [1990] KLR 145
• five persons were prosecuted in the Voi
Resident Magistrate’s Court for smuggling 135
bags of coffee. They were acquitted and the
court ordered that the coffee should be sold
by public auction. The plaintiff purchased all
the 135 bags. The police however refused to
release the coffee to the plaintiff and
eventually released the same to the
Government of Tanzania. Held: there was
conversion by wrongful delivery
 4. Conversion by estoppel

• a defendant would be liable in conversion if

having taken lawful possession of the
plaintiff’s chattel he refuses to deliver it back
at a stipulated time and denies either
possession or alleges that the plaintiff had no
right to it.
• The defendant will be estopped by his own
previous conduct through which he had
recognised the plaintiff’s title from
subsequently denying that the plaintiff had
not title to the chattel.
• In Seton Laing & Co v. Lafone (1887) 19 QB 68
it was held that a bailee is stopped from
denying the title of his bailor and therefore a
refusal to redeliver the property is a
conversion even though the plaintiff in fact
has no title to it.
5. Comparison with the offence of stealing/theft-Penal Code section 268

• 268. (1) A person who fraudulently and

without claim of right takes anything capable
of being stolen, or fraudulently converts to the
use of any person, other than the general or
special owner thereof, any property, is said to
steal that thing or property.
• (2) A person who takes anything capable of
being stolen or who converts any property is
deemed to do so fraudulently if he does so with
any of the following intents, that is to say-
• (a) an intent permanently to deprive the
general or special owner of the thing of it;
• (b) an intent to use the thing as a pledge or
security;
• (c) an intent to part with it on a condition as to
its return which the person taking or converting
it may be unable to perform;
• (d) an intent to deal with it in such a manner
that it cannot be returned in the condition in
which it was at the time of the taking or
conversion;
• (e) in the case of money, an intent to use it at
the will of the person who takes or converts it,
although he may intend afterwards to repay
the amount to the owner;
• and "special owner" includes any person who
has any charge or lien upon the thing in
question, or any right arising from or
dependent upon holding possession of the
• (3) When a thing stolen is converted, it is
immaterial whether it is taken for the purpose
of conversion, or whether it is at the time of
the conversion in the possession of the person
who converts it; and it is also immaterial that
the person who converts the thing in question
is the holder of a power of attorney for the
disposition of it, or is otherwise authorized to
dispose of it.
• (4) When a thing converted has been lost by
the owner and found by the person who
converts it, the conversion is not deemed to
be fraudulent if at the time of the conversion
the person taking or converting the thing does
not know who is the owner, and believes on
reasonable grounds that the owner cannot be
discovered.
• (5) A person shall not be deemed to take a
thing unless he moves the thing or causes it to
move
 C. TRESPASS TO LAND

• 1. The Cujus maxim: the tort of trespass to

land is based on the classical legal maxim-
cujus est solum ejus est usque ad coelum et ad
inferos
• coined by a Roman known as Accursius in
Bologna in the 13th century-meaning he who
owns or possesses the surface of land owns or
possesses all the underlying strata and the
column of space above the surface.
• The tort of trespass to land is a violation of the
right of possession rather than ownership;
thus as long as the pl is entitled to possession
he can exclude anyone including the owner
• See Giodano Allievi Anor v Robert Kaingu
Maitha HCCC No 103 of 2000. The suit
property had been allocated to three different
parties with the plaintiffs being in actual
possession. The defendant had tried to evict
the plaintiff
• In granting a temporary injunction the court
reasoned that even though the issue of
ownership had yet to be settled the plaintiffs
being the ones in possession were entitled to
exclude others from the premises stating that
“the person who has actual possession is
entitled to protect his interest by a suit in
trespass.”
• The court relied on a passage from Halsbury’s
Laws of England 4th Edition Volume 45 par.
1394. Par. 1396 stating: “Trespass is an injury
to a possessory right, and therefore the proper
plaintiff in an action of trespass to land is the
person who was or who is deemed to have
been in possession at the time of trespass.”
• It goes on to state:- “The owner has no right to
sue in trespass if any other person was lawfully
in possession. Since a mere right of property
without possession is not sufficient to support
the action.”
• The tort consists in either 1) entering upon
land in the possession of the plaintiff or; 2)
remaining upon such land or; 3) placing or
projecting any object upon the land.
• Being a trespass it is actionable per se-i.e.
without proof of damage
• the personal entry by the defendant or by
some other person or animal in the
defendant’s control into land or building
occupied by the plaintiff without any lawful
justification is a trespass. See M’Mukanya v
M’Mbijiwe [1984] KLR 761 “in a tort of
trespass to land the plaintiff must prove that
the defendant entered on the property when it
was in his possession. He must show he had
the right to immediate and exclusive
possession. He does not have to prove
damage.”
• a person who has lawfully entered on land in
the possession of another commits a trespass
if he remains there after his right of entry has
ceased. Thus when a license of occupancy
expires a person can be sued if he refuses to
leave and reasonable force may be used to
control movements of a trespasser or to eject
him.
See East African Railways Corporation v Karangi
[1988] KLR 108.
• Where it was held that where a person has
access to premises based upon his
employment by the owner, where the
provision of the house is a condition under the
employment, then he must vacate the house
when the employment ends and failure to do
so constitutes a trespass
 Airspace

• The direct infringement of the airspace above

another’s land by a structure attached to the
adjoining land is a trespass. Kelsen v Imperial
Tobacco Co. Ltd [1957] 2 QB 334, D, owners of a
high building put an advertising sign 20 feet (6
metres) long and 10 feet (3 metres) high on the
side of their building about 20 feet above the
roof of P’s single storey shop. The sign intruded only
8 inches (10 cm) into the air space above plaintiff’s
shop. HELD: that the placing of the sign on the wall
was a trespass to the neighbour's land and a
mandatory injunction was given requiring that the
sign be removed.
• In Lemmon v. Webb [1895] AC 1 the question
raised by the appeal was whether, where
branches of trees overhang the land of
another person, the person whose land they
overhang would be entitled to remove those
branches without notice to his neighbour on
whose side of the boundary the trees grow.
HELD: where branches overhung the land of a
person that person would have the right to cut
them off without notice to the owner of the
adjacent land or the trees so provided he does
not while doing so encroach on the other
• The mere entry into one’s airspace above the
land is not actionable, unless it causes some
harm, danger or inconvenience to the occupier
of the surface.
• See e.g. Bernstein of Leigh v Skyviews & General
Ltd. [1977] 2 All ER 902 Defendant took photos of
the plaintiff’s residence from an overflying
aeroplane. The plaintiff alleged that the
defendant had trespassed in his airspace. The
court held that there had been no trespass as the
plane was flying many hundreds of feet above
the ground and it never caused any interference
with the plaintiff’s use of the land.
Reasons given by the courts

• there was no authority that supported the

view that a landowner’s rights in the air space
above his property extended to an unlimited
height
• The literal application of the maxim would
lead to results that were absurd since it would
mean that a trespass would be committed
even by satellites passing way up in the
airspace so long as their position coincided
with the plaintiff’s property.
• Modern life required that a balance be struck
between the rights of an owner of land to
enjoy the use of his land and the rights of the
general public to take advantage of all that
science now offers in the use of air space.
• This balance would be best struck by restricting
the rights of an owner in the air space above
his land to such height as is necessary for the
ordinary use and enjoyment of his land and the
structures upon it, and declaring that above
that height he has no greater rights in the air
space than any other member of the public.
• Qn: assuming it was skyscraper and the
defendant took photos of the roof?
• Cf: Anchor Brewhouse Developments Ltd &
Others v Berkeley House Ltd (1987) 38 BLR 82
• A site was being developed with the
assistance of very tall cranes. When not in use
the cranes were left in such a state that they
overhung the plaintiff’s property. It was held
that this overhanging could amount to
trespass. Scott J stated:
• “A landowner is entitled, as an attribute of his
ownership of the land, to place structures on
his land and thereby to reduce into actual
possession the airspace above his land. If an
adjoining owner places a structure on his (the
adjoining owner’s) land that overhangs his
neighbour’s land, he thereby takes into his
possession airspace to which his neighbour is
entitled. That in my judgment is trespass.”
• The judge distinguished the Bernstein case-the
invasion here emanated from a structure
placed on the ground. The interference was
on ordinary use of land. It was possible that
the plaintiff might make use of the airspace
above his land and which use might be
interfered with by the defendant’s intrusion.
• For criminal trespass read the Trespass Act cap
294
• 2. Defences to trespass to land
• -students to read
• 3. Remedies for trespass to land
• Students to read on the following
• -injunction
• -abatement/self-help/re-entry
• -damages
• -Action for mesne profits-the benefits accrued
by the defendant between the start and end
of trespass
• Compulsory acquisition
• Coastal aquaculture Ltd v Commissioner of
Lands