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ELCDismissedNot stated in the judgment (plaint dated 17th July 2017)· [2019] KEELC 212 (KLR)

Francis Gachoki Matu v Kenya Rural Ministry of Road Authority Kirinyaga Region [2019] KEELC 212 (KLR)

Environment and Land Court
15 November 2019
ECE.C. Cherono
1,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A landowner's Kshs. 1.7 million claim against Kenya Rural Roads Authority failed because no surveyor or valuer proved the damage, even though the case went unopposed.

What this practically means

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Executive summary

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The plaintiff, personal representative of the estate of Susan Wakabu Matu, registered proprietor of land parcel Inoi/Thaita/565, sued the defendant by plaint dated 17th July 2017, claiming Kshs. 1,719,174/= as special damages for destruction of property allegedly committed by the defendant's employees and agents between November 1998 and January 2015. The particularised atrocities included construction of a bridge inside his land, uprooting and cutting trees, digging and widening a road and destroying a house, placing culverts that changed the course of the Kandakame stream, cutting coffee trees, and causing the plaintiff's arrest and prosecution. The defendant filed a statement of defence and a witness statement of Douglas Kanyatta Macharia, its Road Overseer, but called no witness at the hearing, maintaining that the road improvement works followed the existing alignment, added only a 900mm culvert at the permanent stream without diverting its flow, and that the culverts and stream lay within a riparian reserve not on the plaintiff's land. The suit proceeded ex-parte after the court was satisfied the defendant was served. The court framed two issues: whether the plaintiff had discharged his burden of proof on a balance of probabilities, and costs. Applying sections 107, 108 and 109 of the Evidence Act and Ratcliffe v Evans on the particularity required of special damages, the court held that the plaintiff failed to call a surveyor to prove the alleged works were on his land and produced no valuation report from an Agricultural Extension officer or Valuer to justify the quantum. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the plaintiff discharged the burden of proof on a balance of probabilities in an ex-parte suit

Holding

The plaintiff did not prove his claim to the required standard despite the suit proceeding ex-parte

Reasoning

The court held that an ex-parte hearing does not relax the evidentiary burden. The plaintiff alleged a bridge was built on his land but called no surveyor to produce a map or report showing the alleged works were on his parcel. He also failed to explain how he quantified the special damages of Kshs. 1,719,174/= without a valuation report. The defence evidence indicated the culverts were on a permanent stream with a riparian reserve on the original road alignment, and the claim failed.

p. 2
02

Proof of special damages

Holding

Special damages must be proved with certainty and particularity, supported by expert evidence where the nature of the damage demands it

Reasoning

Relying on Ratcliffe v Evans and sections 107, 108 and 109 of the Evidence Act, the court reiterated that he who alleges must prove. The plaintiff's unsubstantiated computation of Kshs. 1,719,174/= for destroyed trees, coffee and a house could not stand without an Agricultural Extension officer or Valuer's report, and a surveyor's report was essential to prove encroachment onto the suit land.

p. 2

Legal principles established

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  • Even where a suit proceeds ex-parte, the claimant still bears the burden of proving the claim on a balance of probabilities; the burden never shifts
  • Special damages must be pleaded and proved with as much certainty and particularity as the circumstances reasonably allow
  • Claims for damage to land, trees and agricultural produce require expert evidence (surveyor, valuer or Agricultural Extension officer) to establish the location and quantum of damage

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Evidence Act (Cap 80, Laws of Kenya)Sections 107(1), 107(2), 108 and 109

Cases cited (1)

  • Ratcliffe Vs Evans
    (1892) 2 QB 524
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over claims relating to land (Environment and Land Court Act); suit instituted by plaint dated 17th July 2017

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Francis Gachoki Matu v Kenya Rural Ministry of Road Authority Kirinyaga Region [2019] KEELC 212 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 17th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/212/eng@2019-11-15

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