RELEVANT FACTS

The case at hand presents to us various facts. Mwangi lives in a small village where he owns
a farm. Here, he rears green-backed chameleons for export to highly profitable market in the
far-east. During the month of June, the chameleons enter into a mating season. The cold
conditions provide them with suitable breeding conditions. As a result of this, they make
eerie, creepy sounds that are quite loud. The chameleons also tend to be quite violent. All this
however is consistent with their mating rituals during this period and month and they pose no
harm to anybody.

Mr. Mdosi is the new owner of a large farm next to Mwangi’s. He is unfamiliar with the
situation in the community. He is thoroughly disturbed by the chameleons that he issues
Mwangi a demand letter through his lawyer instructing him to quit the disturbance. When this
doesn’t work, he tries to coerce the neighbours to his school of thought but ends up realising
that the community members are at home with the chameleons. In fact, Mr. Maziwa’s cows
produce more milk during this period, Mr. Mpishi’s chicken are safe since the noise drives
away foxes and Ms. Mwalimu’s pupils love taking science field trips to Mwangi’s farm to
look at the chameleons. Generally, the community around has no problem whatsoever with
the chameleons.

Later on, Mdosi is heard talking to some locals at the bar telling them that he will deal with
the chameleon menace himself. Days later, Mwangi finds all his 4000 chameleons dead.
Upon consulting Doctor Zero, he finds out that they died from snake venom. Bwana Mlevi
from the bar reports that Mr. Mdosi was seen purchasing snake venom from a shady figure.
The morning after, Mr. Mdosi is seen at the scene and is heard saying the phenomenon was
definitely an act of God.
The resulting situation leaves Mwangi in a situation where he is facing financial losses
whereby the bank is asking for defaulted payments and his Asian customers are threatening to
change suppliers. Moreover, he hears that Mr. Mdosi has started a farm where he is raising
12,000 Green-Backed chameleons and has even gone ahead to poach some of his customers.

ISSUES AT HAND

The facts presented to us in this case are several due to the various situations that occur.
Some of these issues raised are;

i. Whether the evidence at hand is sufficient to implicate Mr. Mdosi for the
damage.
ii. Whether Mr. Mdosi’s actions can be classified as tortious action.
iii. Whether Mr. Mdosi’s actions result in damage on the plaintiff’s part.
iv. Whether the circumstantial evidence at hand can apply in this case.
v. Whether the Intentional Tort of Conversion applies to this situation.
vi. Whether there was intent on the part of Mdosi.
vii. Whether Mdosi’s action s are actionable.
viii. Damages owed to Mwangi for loss suffered.

The various issues come through in the situation at hand. The first listed issue mentions
evidence. The evidence in this case comes across as circumstantial. For example, Mdosi is
seen buying snake venom a few days before the chameleons die of snake venom. The issue of
circumstantial evidence come across since there is no direct evidence linking Mdosi to the
Death of the chameleons. Circumstantial evidence can apply to court cases. However, the
evidence presented must be closely linked to the action at hand1. This is why it’s called
circumstantial. In this matter, the ‘circumstances at hand are several. Mdosi is heard saying
he will deal with the issue himself. He is later seen buying snake venom and later the
chameleons die of snake venom poisoning. These events fulfil the requirements of
circumstantial evidence. Mdosi was seen buying the venom and later on the chameleons die

1
BROADRICK, A. (1984). Circumstantial evidence. New York, N.Y., Silhouette Books.
of snake venom poisoning. Even if no one actually saw him commit the act, this evidence
will stand in court. However, standard of proof2 in such situations is very high and it depends
on the plaintiff to convince the court to accept the evidence.

LAW

The case at hand presents us with a tortious action done by Mdosi. Mdosi is suspected to have
killed Mwangi’s chameleons using snake venom and later gone ahead to have started a
similar farm at a different location selling the same commodity to Mwangi’s old customers
after they deserted him. Such is a matter of trespass to property under intentional torts and the
cause of action that can be pursued is Conversion.

Conversion has been defined over the years by various scholars. In summary, conversion can
be defined as an intentional exercise of dominion, deprivation, alteration, trespass and or
control over chattels which seriously interferes with the right of another to control it without
legal authority to do so. Conversion was first talked about in the case of Fouldes v
Willoughby (1841)3 in this case, the case was about a ferry owner who refused to carry some
horses for the owner. He returned them to land and the horse owner sued for conversion.
Initially the plaintiff was awarded damages but on appeal, the exchequer court held he was
not liable for conversion citing relevant elements of conversion for it to qualify as a relevant
cause of action in a court of law.

These elements are

I. Plaintiff has clear legal ownership/rights to possession at the time of

conversion.
II. Defendant’s conversion is by a wrongful act/disposition of plaintiff’s
property rights.
III. The conversion MUST have caused damage to the plaintiff.

2
In instances of circumstantial evidence. The standard of proof basically means the degree of burden of proof
that befalls the plaintiff is higher than normal.
3
Fouldes v Willoughby (1841) 8 M&W 540
Rolfe B gave a definition of conversion during this case that is still in use to this day, he
defined conversion as “a taking with the intent of exercising over the chattel an ownership
inconsistent with the real owner's right of possession"

This definition has over the years evolved with the times to not only include intentional
dominion of a chattel but also to include a serious alteration to the same.

Serious alteration to a chattel in relation to the definition of conversion simply means the
changing/alteration of a chattel in a way that is inconsistent with the rights of the owner.
Simply put, as long as normal use in hindered or can no longer continue.

For Mwangi to claim conversion, several conditions have to be met;

i. Plaintiff must have interest in the thing that has been converted.
ii. For the plaintiff to claim conversion, he has to be in possession/entitled to
the property at the time of conversion.
iii. Plaintiff falls under burden of proof in establishing the right to the property
and what is converted.

APPLICATION OF LAW TO THE FACTS OF THE CASE

Having looked at all the relevant facts of the case and established the law to use in supporting
the claim for conversion, the law has to be determined and applied to the facts at hand.
Mdosi’s actions are directly linked to the death of Mwangi’s animals under the doctrine of
circumstantial evidence. Burden of proof at this point relies heavily on Mwangi to support his
claims. To do this, he will have to meet several thresholds for burden of proof to support the
circumstantial evidence;

i. The defendant somehow changed/altered the property.

ii. The change hinders the Defendant from using his property.
iii. The actions of the defendant have to be closely linked to the loss in a way
that is reasonable and natural.
Looking at these requirements, Mdosi was seen purchasing snake venom from a shady
character. Days later Mwangi’s chameleons died from snake venom. This would have been
another story were it not for Mr. Mdosi being overheard at the local bar saying how he will
teach Mwangi a lesson. This fulfils the third threshold for circumstantial evidence. The fact
that he bought the venom after swearing he will deal with the issue of the chameleon and the
death of the chameleons from snake venom is extremely closely linked. Furthermore, the
death of the chameleons hinders Mwangi from further utilisation of his property. This is a
permanent alteration to his chattels4. The death of the chameleons was a permanent alteration
and left Mwangi unable to further enjoy possession of the chattel.

Mdosi’s actions are tortious in every manner. In conversion, the principle of intent applies.
However, it is not a must intent be proven in a case of conversion. If A intentionally destroys
B’s chattel, A is liable for conversion. Intent is not a compulsory aspect to prove cause but if
present helps in the claim against the defendant. In the case Chem-Age Industries v Glover
(2002)5 the court held that the foundation for the action of conversion rests neither in the
knowledge of the intent of the defendant, it rests upon the unwarranted interference by a
defendant with the dominion/alteration of the property of the plaintiff from which injury to
the latter later results.

The issue of dominion comes in here as a major player in pushing the claim of conversion.
Intent and interference go hand in hand. The intentional exercise of dominion, control and or
alteration over a chattel which seriously interferes with the right of another holds the latter
liable for conversion. In conversion, one type of interference comes across as most relevant.
This is ‘Serious interference’ this is very serious harm/ other serious interference with the
right of control/possession. The poisoning of the chameleons qualifies as serious interference
in relation to various ways of determining seriousness of harm;

i. Actors intent to assert a right inconsistent with the others right of control
ii. Harm done
iii. Inconveniences and expense/losses caused.

4
In early days when conversion was still a shallow aspect of trespass to property, conversion was limited only
to the taking of property from a person and using it for one’s own use. Conversion has evolved to include
alterations that are permanent.
5
Chem-Age Indus. v. Glover, 2002 SD 122 (S.D. 2002)
 iv. Knowledge of harm on the part of the plaintiff.

In this situation, the harm done is straightforward as Mwangi’s source of income has been
taken away from him by Mdosi’s actions. He has also suffered vast inconveniences and
losses as a result of the conversion. We are told that the bank has started pressuring Mwangi
because of delayed payments and his eastern customers are putting pressure on him for late
supply and even threatening to leave him. This situation can be illustrated in the case of
Kuwait Airways v Iraq Airways (2002)6 in this matter, Iraq military forces invaded Kuwait
taking over an airport and seizing ten aircraft there. They then flew them to Iraq. While in
Iraq, a bomb attack happened in the airport they were kept and four of them were destroyed
and the rest being moved to a different base under Iraq’s appropriation. Kuwait sued for
damages for losses incurred claiming conversion. It was held that the plans had already been
converted and Iraq was held liable since the loss was a result of the defendant’s actions of
taking the plane. This case puts into context an example whereby a person cuts down a tree in
their neighbour’s compound and leaves it there. The neighbour is liable for conversion since
he has seriously altered the chattel and the neighbour whose tree has been cut down cannot
continue to enjoy the rights he used to.

The elements of conversion come into play in this issue. Two elements that apply most in
relation to burden of proof are conversion by wrongful act and damages resulting from the
conversion. The wrongful act in question was that of killing/poisoning of the chameleons
with snake poison and financial losses incurred. The conversion in this situation occurred
when Mdosi circumstantially killed the chameleons using snake venom that he was seen
purchasing a few days earlier before the tortious act occurred. Mwangi’s use and utilisation
of the chameleon was permanently altered when they were seriously harmed. The killing of
these chameleons qualifies for conversion since it was intentional deprivation of the owner of
the possession of property.

6
Kuwait Airways Corporation v Iraqi Airways Company (No’s 4 & 5)
CONCLUSION

Conversion being a general intent tort and not a specific intent tort means the intent to take
the property is enough to support the claim of conversion. Proving that Mdosi intended to
perform the tortious act to Mwangi’s chameleons so that he could go ahead and start his own
farm to steal his clients is enough support for this claim.

The standard remedy Mwangi should pursue is a judgement for damages in an amount equal
to the current market value of the property lost. In addition, punitive damages are also legible
since conversion is an intentional tort. These are given in addition to actual damages. The
main purpose of this is to punish for outrageous conduct and to prevent the defendant from
similar actions in future. A point to note in conversion is that damages are based on harm
caused by the defendant/suffered by the plaintiff which in this case is the killing of
chameleons rather than the value of the chattel converted.

An expected defence the defendant will pose is that the death of the chameleons was an act of
God. This can be easily countered with the principle of reasonability. It is not reasonable that
4000 chameleons were killed by snakes that invaded his farm over one night. Furthermore, if
the area was prone to snakes, Mwangi as a farmer would have extended reasonable degree of
care in protecting his animals from snake attacks and put up relevant preventive measures.
Conversion is the best cause of action in this matter since it covers most of the tortious
actions in this case and would be a strong avenue in a court of law.