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ELCPartially Allowed· [2018] KEELC 165 (KLR)

Tim Mwai & 2 others v Extra Mile Limited [2018] KEELC 165 (KLR)

Environment and Land Court
19 December 2018
BEB M Eboso
2,747 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered a developer to pay Kshs 1.5 million and fix storm water drainage after diverting it without approval or consulting affected neighbours.

What this practically means

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Executive summary

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The plaintiffs, owners and occupiers of town houses in Vital View Court on LR 209/10345/3, Brookside Drive, Westlands, sued Urban Earth Apartment Ltd alleging that in 2012 the defendant diverted an existing storm water drainage system through their driveway and front garden into a County way leave, disrupting their enjoyment of and access to their properties without notice or consultation. They sought demolition of the new drainage, damages for reinstatement of the driveway and garden, special and general damages, and costs. The defendant denied liability, asserting that flooding in 2011 and 2012 necessitated the diversion, that the City Council of Nairobi authorized the works, and that no negligence lay under the rule in Rylands v Fletcher. The court, after a site visit, found that the approval letter of 3/5/2012 authorized only improvement of the existing drainage on LR 209/10345/1, not its diversion, and that the 2012 works were neither authorized nor preceded by consultation with the affected plaintiffs. The defendant was therefore liable for the unauthorized diversion and disruption of the plaintiffs' quiet enjoyment. The court declined direct reversion of the drainage as impracticable and instead allowed the defendant 120 days to obtain approvals and construct adequate enclosed culverts to River Kibarage, with a default right for the plaintiffs to re-route at the defendant's cost. General damages of Kshs. 1,500,000 were awarded; reinstatement and special damages were refused for want of evidence. The defendant was ordered to bear the costs of the suit.

Key legal issues

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01

Liability for unauthorized diversion of storm water drainage

Holding

The defendant was liable because the Council's approval was limited to improving the existing drainage, not diversion, and the plaintiffs were not consulted

Reasoning

The court found as common ground that the drainage originally ran through LR 209/10345/1 and that the diversion cut across the plaintiffs' driveway and garden. The approval letter of 3/5/2012 addressed to Extra Mile Limited authorized only improvement of the existing drainage on LR 209/10345/1. There was no evidence the 2012 diversion works were authorized or that affected residents were consulted, hence liability for unauthorized diversion and disruption of quiet enjoyment.

p. 3
02

Appropriate remedy - reversion versus remedial re-routing

Holding

The court declined direct reversion and instead permitted the defendant to undertake proper re-routing with enclosed culverts to River Kibarage within 120 days, failing which the plaintiffs may re-route at the defendant's cost

Reasoning

After a site visit the court found that reversion to the original course, which ran through LR 209/10345/1 bordering River Kibarage, would create more problems. A holistic approach requiring approved remedial works with bigger enclosed culverts stretching to the river was preferred, with a self-help default remedy for the plaintiffs at the defendant's cost.

p. 3
03

Quantum and proof of damages

Holding

Modest general damages of Kshs. 1,500,000 awarded for disruption and suffering; reinstatement and special damages refused for lack of evidence

Reasoning

Having found the defendant liable for unauthorized diversion and disruption of the plaintiffs' peaceful enjoyment without prior notice, the court assessed modest general damages at Kshs. 1,500,000. However, the claims for reinstatement of the driveway and flower garden and special damages failed because no evidential material supported them; restoration was expected from the remedial works.

p. 3

Legal principles established

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  • A property owner who undertakes works not authorized by the approval granted and which disrupts neighbours' enjoyment of their properties without consultation is liable for nuisance/unlawful interference
  • A grant of authority limited to improvement of an existing drainage does not authorize diversion of that drainage

Court orders

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  1. 1.The defendant is at liberty, within 120 days, to seek approvals and undertake proper re-routing of the storm water drainage through the nearby Nairobi City County Government's way leave into the nearby River Kibarage
  2. 2.The said drainage shall entail adequate size of enclosed culverts which shall extend up to the River Kibarage
  3. 3.In default, the plaintiffs shall be at liberty to re-route the storm water drainage back to the original course through Land Reference Number 209/10345/1 at the defendant's costs
  4. 4.The defendant to pay the plaintiffs general damages of Kshs. 1,500,000
  5. 5.The defendant to bear costs of the suit

Authorities

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Cases cited (4)

  • Ahmed Ibrahim Suleiman & another vs. Noor Khamisi Surur
    (2013) eKLR
  • Ezekiel Sukuru Maumba vs. Thomas Indieki Nyairo
    (2013) eKLR
  • Minister of Health & others vs. Treatment Action Campaign & others
    (2002) 5 LRC 216
  • Rylands vs. Fletcher
    (1868) LR 3 HL 330
Jurisdiction invoked
Original civil suit by plaint (tort/land dispute); specific enabling provision not cited in judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Tim Mwai & 2 others v Extra Mile Limited [2018] KEELC 165 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/165/eng@2018-12-19

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