John Mutungu Waititu v China Wuyi (Kenya) Co. Limited [2018] KEELC 3369 (KLR)
The bottom line
#A Kenyan court confirmed that a company which degrades your land must restore it — money cannot buy its way out of environmental repair.
What this practically means
#Executive summary
#Key legal issues
#Breach of contract - failure to push back top soil
The Respondent breached paragraph iv of the 19 August 2009 agreement by failing to push back the top soil after excavation
The written agreement expressly required that after excavation party A would push back the top soil accordingly. The evidence of the Appellant and PW2, the photographs produced, and the trial magistrate's site visit showing no top soil was pushed back established the breach. The defence assertion that the top soil was too little to level the ground could not excuse the express obligation.
Environmental degradation and entitlement to restoration
The Respondent's failure to push back the top soil culminated in environmental degradation; the trial court's finding of degradation was confirmed and restoration ordered rather than compensation in lieu
Relying on section 3 of EMCA and section 111, the court held that a person whose environment right is violated may seek restoration and compensation, and a court of competent jurisdiction may issue an environmental restoration order without the plaintiff showing a right or interest in the harmed land. The magistrate's finding of degradation was a finding of fact not disturbed.
Compensation in lieu of restoration impermissible
The trial magistrate's order allowing compensation of Ksh. 200,000 in lieu of restoration was set aside; compensation may only be in addition to restoration
The court accepted the Appellant's argument, grounded in Article 70 of the Constitution and section 3(3) EMCA, that the duty to conserve the environment is for posterity, so monetary compensation cannot be an alternative to an order for restoration of degraded environment. The impugned portion (c) of the decree was set aside.
Damages for breach - nominal damages for unquantified loss
Since the Appellant did not plead or quantify special damages, nominal damages of Kshs 25,000 were adequate for the breach
Special damages must be specifically pleaded and proved; the Appellant's expenditure on stones to arrest soil erosion was not claimed as special damages. General damages are presumed from infringement of a legal right, and where a breach is proved but loss is unquantified, nominal damages lie, as explained in 'Medina' and the 'Mediana'.
Interest on the balance of Ksh. 15,000
The 18% commercial rate imposed by the trial court was replaced with interest at court's rate from the date of filing suit
The Respondent objected to the 18% per annum rate as having no basis in law. The appellate court varied the award, directing payment of the balance of Ksh. 15,000 with interest at courts rate, replacing the magistrate's commercial rate.
Legal principles established
#- A court of law cannot rewrite a contract between parties; they are bound by its terms absent pleaded and proved coercion, fraud or undue influence
- A first appellate court must revisit the evidence afresh, analyze and evaluate it and reach its own conclusion while allowing for the trial court's advantage of seeing the witnesses
- Restoration of a degraded environment is not to be substituted by compensation; the court may compel the person responsible for degradation to restore the degraded environment and award compensation in addition
- A plaintiff under EMCA need not show a right or interest in the property or land alleged to have been harmed
Court orders
#- 1.The Appeal by the Appellant John Mutungu Waititu is allowed
- 2.The Appellant is awarded Kshs 25,000/- nominal damages
- 3.The Respondent to move onto the Appellant's land and ensure it is restored to sound environmental standard not harmful to the environment, area residents and animals
- 4.The County Environment officers to ensure the Respondent restores the Appellant's land in good environmental condition
- 5.The order for compensation of Ksh. 200,000/= in the alternative of environmental restoration is set aside
- 6.The Respondent to pay the Appellant the balance of Ksh. 15,000/= plus interest at court's rate from the date of filing suit until payment in full
- 7.The Cross Appeal by China Wuyi (Kenya) Co. Limited is dismissed
- 8.Costs to the Appellant both in this court and in the Magistrate's court
- 9.Judgment to be served upon NEMA to serve an environmental restoration order on the Respondent within 21 days
- On appeal from
- Principal Magistrate's Court at Nyahururu
- PMCC No. 219 of 2010
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the subordinate court in environmental and land matters (matter transferred to ELC as a preserve of that court); powers under Order 42 Rule 32 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Mutungu Waititu v China Wuyi (Kenya) Co. Limited [2018] KEELC 3369 (KLR)", Case Analysis (2018). ELC Appeal No. 25 of 2017 (appeal and cross-appeal from PMCC No. 219 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3369/eng@2018-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.