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ELCPartially AllowedNairobi ELC Case (plaint filed 21/8/2009; LR No 4927 Kamiti Road, Githurai)· [2019] KEELC 446 (KLR)

Miaraho Limited v Synohydro Corporation Limited [2019] KEELC 446 (KLR)

Environment and Land Court
5 December 2019
BEB M Eboso
5,548 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A landowner won damages against a Chinese construction firm for illegal excavation, but the payout dropped from a claimed Kshs 163 million to Kshs 1.5 million because the evidence only proved 3 acres were damaged.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of LR No 4927 along Kamiti Road, Githurai, sued the defendant for trespass, alleging that between June and August 2009 the defendant excavated red top soil and murram from 256 acres, causing waste it valued at Kshs 163,000,000, and sought a further Kshs 128,000,000 for restoration. The defendant defended the claim on the basis of an excavation agreement dated 5/6/2009 said to have been entered with Rose Nyambura Mwangi, administrator of the estate of a shareholder, and contended the excavation was confined to the portion allocated to that estate. The court found the land remained a single registered parcel of the plaintiff at all material times; the agreement was in fact with Wacera Mwangi, who was neither director, shareholder nor authorised agent, and was therefore an illegality, making the defendant a trespasser. On acreage, the court rejected the claim of 256 acres because the plaintiff's own arbitral evidence showed depletion of about 32 acres as early as 2007 and other unrelated excavations had occurred; it accepted DW1's evidence of 3 acres affected. Applying the Dodd Properties and Duncan Nderitu Ndegwa principles, the court adopted the cost of reinstatement of the 3 acres at Kshs 500,000 per acre as at 2009 and awarded Kshs 1,500,000, rejecting both the Kshs 163,000,000 and Kshs 128,000,000 pleas. The award attracts interest at court rates from judgment, and the defendant was ordered to bear the suit's costs for committing an avoidable tort.

Key legal issues

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01

Whether the defendant was a trespasser on the suit property

Holding

The defendant was a trespasser; the excavation agreement of 5/6/2009 with Wacera Mwangi was an illegality as she had no mandate over land belonging to the plaintiff

Reasoning

The land was throughout registered in the plaintiff's name. The agreement was with Wacera Mwangi, not Rose Nyambura Mwangi, and no agreement with the latter was produced. At the time of the agreement the shareholders' dispute was pending before the arbitral tribunal, the land had not been sub-divided, and no portion had been allocated. Wacera Mwangi was neither a director, shareholder nor authorised agent of the plaintiff, so she had no capacity to grant excavation rights.

p. 5
02

Acreage affected by the defendant's excavation

Holding

Only 3 acres were attributable to the defendant; the claim of 256 acres was rejected

Reasoning

The plaintiff's own arbitral-tribunal witness, Job Kamau, had found about 32 acres depleted by quarrying as early as 2007, and PW1 admitted other unrelated excavations occurred. The plaintiff failed to evidence the pre-June 2009 depletion versus the defendant's depletion. DW1, who inspected in 2014 and measured the pointed-out area, gave the only credible evidence: 3 acres.

p. 5
03

Measure and quantum of damages

Holding

Cost of restoration of the 3 acres as at 2009 applied; Kshs 1,500,000 awarded based on PW2's Kshs 500,000 per acre assessment

Reasoning

Citing Dodd Properties and Duncan Nderitu Ndegwa, the court adopted either diminution in value or cost of reinstatement, not both. Since the land had been sub-divided and sold and no before-and-after valuation evidence was adduced, the logical measure was restoration cost. Using PW2's 2009 assessment of Kshs 500,000 per acre, the 3 affected acres yielded Kshs 1,500,000.

p. 6

Legal principles established

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  • A person who excavates land belonging to another without the owner's authority is a trespasser and the excavation is illegal
  • The measure of damages in trespass to land causing damage is either diminution in value or cost of reinstatement, not both; the reasonableness of reinstatement guides the choice
  • Where the plaintiff lumps together damage caused by multiple excavators without isolating the defendant's contribution, the claim for the total depletion fails

Court orders

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  1. 1.The plaintiff is awarded Kshs 1,500,000 as damages for the waste occasioned to the suit property by the defendant between June 2009 and August 2009
  2. 2.The plea for Kshs 128,000,000 as cost of return, filling and ramming of the affected land is rejected
  3. 3.The damages awarded shall attract interest at court rate from the date of judgment
  4. 4.The defendant shall bear costs of this suit

Authorities

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Cases cited (2)

  • Dodd Properties (Kent) Limited and another v Canterbury City Council and others
    [1980] 1 All ER 928
  • Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & Another
    [2013] eLKLR
Jurisdiction invoked
Original civil jurisdiction over a claim for trespass to and waste of land (first-instance suit by plaint)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Miaraho Limited v Synohydro Corporation Limited [2019] KEELC 446 (KLR)", Case Analysis (2019). Nairobi ELC Case (plaint filed 21/8/2009; LR No 4927 Kamiti Road, Githurai). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/446/eng@2019-12-05

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