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Court of AppealPartially AllowedCivil Appeal No. 445 of 2018

Orbit Chemicals Industries v Ndetei (Civil Appeal 445 of 2018) [2021] KECA 741 (KLR)

Court of Appeal of Kenya
19 March 2021
Martha Karambu KoomeM. K. KoomeASAsike-MakhandiaFSF. Sichale
7,292 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a factory must pay for polluting a neighbour's land, but slashed the Kshs 267 million soil restoration award to Kshs 12 million.

What this practically means

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Executive summary

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This first appeal challenged the judgment of Emukule, J. (High Court at Meru, 13 June 2014) which found Orbit Chemicals Industries liable in nuisance and under the rule in Rylands v Fletcher for pollution of the respondent's adjoining agricultural/residential land, awarding Kshs. 269,439,464.15 - comprising Kshs. 267,439,464.15 as special damages for soil restoration plus general damages - and dismissing the appellant's counter-claim. The Court of Appeal first rejected the respondent's competency objection to the appeal: no missing primary document or prejudice was identified and the strike-out application was out of time under Rule 84. On liability, the court re-evaluated the conflicting expert evidence, the NEMA report, the respondent's documented complaints and the trial judge's site visit, and affirmed the finding that hazardous waste water escaped from the appellant's factory premises onto the suit premises following the change of user from agricultural to industrial use; the polluter-pays principle under EMCA reinforced this. On quantum, however, the court found the special damages award a wholly erroneous estimate: the trial judge failed to evaluate the divergent expert valuations, ignored mitigating factors (built-up areas, actual acreage requiring restoration, and the respondent's unchallenged bottled water business), and improperly inflated the figure for ten years. The court substituted Kshs. 12,000,000 for the Kshs. 267,439,464.15 award, upholding the general damages of Kshs. 1,500,000 and Kshs. 500,000, making a total of Kshs. 17,000,000 with interest from the date of the High Court judgment. The injunctions were maintained, the counter-claim remained dismissed, and having partially succeeded the appellant bears its own costs of the appeal while the respondent keeps limited High Court costs.

Key legal issues

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01

Whether escape of hazardous waste was proved under Rylands v Fletcher

Holding

Liability under the rule in Rylands v Fletcher was established; the change of user from agricultural to industrial, septic tank effluent and embankments interfering with storm water constituted non-natural use causing escape and damage.

Reasoning

The court weighed conflicting expert evidence, the NEMA report finding effluent from the factory and contamination of ground water, the respondent's documented complaints, and the trial judge's own visit to and observation of the premises. On a balance of probability it was satisfied that waste water laced with dangerous chemicals escaped from the factory to the suit premises, so the trial judge's finding on liability could not be faulted. The polluter-pays principle under EMCA was held to support this conclusion.

p. 6
02

Whether the special damages award of Kshs. 267,439,464.15 for soil restoration was justified

Holding

The award was a wholly erroneous estimate: the judge failed to evaluate conflicting expert valuations, ignored mitigating factors (built-up areas, actual acreage, respondent's bottled water business) and improperly inflated the figure over ten years.

Reasoning

The two respondent experts gave wildly divergent restoration figures (about Kshs. 21.9 million versus an inflation-adjusted Kshs. 267 million). The judge gave no reasons for preferring one over the other and failed to interrogate mitigation evidence. Re-evaluating the two reports, the court fixed an average restoration cost of about Kshs. 1,500,000 per acre, yielding Kshs. 12,000,000, which it substituted for the trial award.

p. 8
03

Whether the appeal should be struck out for omitted exhibits

Holding

The striking-out application failed: the omission of documents is not fatal, no prejudice was shown, and the application was out of time under Rule 84.

Reasoning

Counsel did not identify which primary documents were missing or how his client was prejudiced; the respondent was at liberty to file a supplementary record. Rule 84 requires such an application within thirty days of service of the record of appeal, which was not met.

p. 5

Legal principles established

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  • A first appellate court may re-evaluate evidence and draw its own conclusions but must be mindful that the trial court observed the demeanour of witnesses.
  • An appellate court will interfere with an award of damages only where the trial judge took into account an irrelevant factor, left out a relevant one, or the award is so inordinately low or high that it must be a wholly erroneous estimate of the damage.
  • Special damages must be both specifically pleaded and strictly proved.
  • An application to strike out an appeal for omission of documents must be made within thirty days of service of the record of appeal, and the striking-out party must show which primary documents are missing and the prejudice suffered.

Court orders

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  1. 1.An injunction to restrain the appellant by itself, its servants or agents from disposing contaminated or untreated sewage water through unlined and open drainage soak pit
  2. 2.A mandatory injunction directing the appellant to re-direct all storm water originating from its premises away from the suit premises using drainages with impervious lining
  3. 3.Substitution of the award of Kshs. 267,439,464.15 as costs of restoration of soil with Kshs. 12,000,000.00
  4. 4.General damages for loss of use of land of Kshs. 1,500,000.00 upheld
  5. 5.General damages for nuisance of Kshs. 500,000.00 upheld
  6. 6.Interest on the total sum of Kshs. 17,000,000.00 to accrue from the date of the judgment of the High Court
  7. 7.No order as to costs of the appeal; respondent to have costs in the High Court limited to the aforesaid sum
On appeal from
High Court of Kenya at Meru
Meru H.C.C.C. No 147 of 2014
Jurisdiction invoked
First appeal under Rule 29 of the Court of Appeal Rules (appellate re-evaluation of evidence)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Orbit Chemicals Industries v Ndetei (Civil Appeal 445 of 2018) [2021] KECA 741 (KLR)", Case Analysis (2021). Civil Appeal No. 445 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/741/eng@2021-03-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.