Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 973 of 2015· [2016] KEELC 517 (KLR)

Charles Awiti, Kevin Kahiro Munene, Lavene Ariko Esiaba, Eric Omondi Angula, Innocent Kelvin Owino, James Muoki Wambua, Lucy Wanjiku Ndiko, Eric Kihoro Gitere, Jame Mogo, James Ngunje Kariuki, Samuel Kibor Chemisto, Isaack Martin, Victoria Rotich, Stanley Michieka, Edward Nyaanga, Richard Michieka, Solomon Nyaanga, Joel Michieka,Jan Teya,Francis Macharia & Catherine Masila v China Road And Bridges Corporation Kenya Limited (Environment & Land Case 973 of 2015) (Environment and Land) [2016] KEELC 517 (KLR)

Environment and Land Court of Kenya
20 May 2016
SOS. Okong'o
3,648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court stopped an SGR contractor from rock blasting near Mlolongo homes, ruling that licences and money cannot justify damaging neighbours' property.

What this practically means

#

Executive summary

#
This was a ruling on two interlocutory applications in a suit filed on 6th October 2015 by twenty-one plaintiffs, proprietors of 48 apartments at Mlolongo, Syokimau, against China Road and Bridges Corporation Kenya Limited, the contractor building the Standard Gauge Railway. The plaintiffs sought a declaration that the defendant's rock blasting within two kilometres of their residences was illegal and an infringement of their right to a clean and safe environment, a permanent injunction, compensation for damage, and damages for nuisance. By Notice of Motion dated 5th October 2015 they sought a temporary injunction pending trial. An ex parte interim injunction was granted on 7th October 2015. The defendant, which admitted blasting but claimed it held all requisite licences and acted under professional supervision, applied by Notice of Motion dated 18th November 2015 to discharge the interim injunction and for appointment of an independent structural engineer, citing daily losses of Kshs.1,000,000 and the national importance of the SGR project. Applying the Giella v Cassman Brown principles, the court found a prima facie case: the defendant's own affidavit admitted some cracks predated but impliedly conceded some cracks were caused by blasting, vibration reports showed levels exceeding the 0.5 cm limit under the 2009 Noise Regulations, and no licence for excessive vibrations was obtained. Damages were held inadequate for the inconvenience and anxiety caused, and public interest did not justify breaching the plaintiffs' constitutional rights under Articles 40 and 42. The plaintiffs' application was allowed in terms of prayer 3; the defendant's application was dismissed with costs to the plaintiffs.

Key legal issues

#
01

Whether the plaintiffs established a prima facie case for a temporary injunction

Holding

The plaintiffs established a prima facie case: the defendant admitted blasting near the properties, vibrations in some instances exceeded the 0.5 cm limit under the 2009 Regulations, and the defendant did not obtain a licence for excessive vibrations.

Reasoning

The court found the defendant's replying affidavit admitted some cracks may have been caused by the blasting, and pre-blasting condition assessments showed the defendant expected damage. Vibration reports showed levels exceeding the regulatory limit, and no licence for excessive vibrations was obtained. This satisfied the first Giella criterion.

p. 6
02

Whether damages would be an adequate remedy

Holding

Damages would not adequately compensate the plaintiffs for inconvenience, discomfort and anxiety caused by excessive vibrations and cracking walls.

Reasoning

The court held that the inconvenience and discomfort from excessive vibrations and the anxiety from cracking walls cannot be measured in money. The defendant's ability to pay damages did not entitle it to continue damaging private property, so the second Giella criterion favoured the plaintiffs.

p. 6
03

Whether public interest in the SGR project should override the plaintiffs' constitutional rights

Holding

Public interest does not justify excessive noise, illegal vibrations and damage to private property; the defendant failed to show any law limiting the plaintiffs' rights under Articles 40 and 42.

Reasoning

The court held that the rights to a clean and healthy environment and to own property are constitutional rights limitable only by law and only to the extent reasonable and justifiable under Article 24. The defendant did not identify such a law, and it is not in the public interest for the defendant to make excessive noise and damage private property.

p. 6

Legal principles established

#
  • Licences and permits to conduct blasting do not authorise a party to cause damage to third-party property
  • A party's ability to compensate in damages does not justify it being allowed to damage neighbouring properties
  • Damage from excessive vibration and anxiety caused by cracking walls may not be adequately compensable in damages

Court orders

#
  1. 1.The plaintiffs' Notice of Motion dated 5th October 2015 was allowed in terms of prayer 3 (temporary injunction restraining the defendant from excavating or digging out hard rocks through blasting within a radius of two (2) kilometers from the suit properties pending the hearing and determination of the suit)
  2. 2.The defendant's Notice of Motion dated 18th November 2015 was dismissed
  3. 3.The plaintiffs were awarded the costs of both applications

Authorities

#

Legislation

  • Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution) Control RegulationsRegulation 14(3)
  • Constitution of KenyaArticle 24
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 42

Cases cited (4)

  • Giella vs. Cassman Brown and Co. Ltd
    (1973) E.A 358
  • Mrao vs. First American Bank of Kenya Ltd. & 2 Others
    [2005] KLR 123
  • Venant Masenge vs. The Attorney General Burundi
    East African Court of Justice First Instance Division, Application No. 5 of 2013
  • Symon Gatutu Kimamo and 587 others vs. East African Portland Cement Co. Ltd
    (2011) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over environmental and land disputes

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Charles Awiti, Kevin Kahiro Munene, Lavene Ariko Esiaba, Eric Omondi Angula, Innocent Kelvin Owino, James Muoki Wambua, Lucy Wanjiku Ndiko, Eric Kihoro Gitere, Jame Mogo, James Ngunje Kariuki, Samuel Kibor Chemisto, Isaack Martin, Victoria Rotich, Stanley Michieka, Edward Nyaanga, Richard Michieka, Solomon Nyaanga, Joel Michieka,Jan Teya,Francis Macharia & Catherine Masila v China Road And Bridges Corporation Kenya Limited (Environment & Land Case 973 of 2015)  (Environment and Land) [2016] KEELC 517 (KLR)", Case Analysis (2016). ELC No. 973 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/517/eng@2016-05-20

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