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ELCPartially AllowedELC Case No. 910 of 1997· [2019] KEELC 1879 (KLR)

Mohan Galot v City Council of Nairobi & Nairobi City Water and Sewerage Company (Environment & Land Case 910 of 1997) (Environment and Land) [2019] KEELC 1879 (KLR)

Environment and Land Court
8 August 2019
3,710 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

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A landowner who claimed KSh 120 million for water pollution won only an injunction stopping future discharge, because he couldn't prove his historical damages.

What this practically means

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Executive summary

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Mohan Galot, the registered proprietor of LR 7022/7 (Galot Estate, 20.1 acres in Kiambu County), sued the City Council of Nairobi and the Nairobi City Water & Sewerage Company claiming that on diverse dates in 1996, 2001, 2002, 2003 and 2004 they negligently discharged dirty water containing treatment chemicals from the Kiambu reservoir upstream, polluting the dam on his land, killing fish, eroding his land and damaging his boundary wall. He sought an injunction against further discharge, an order compelling the Defendants to rectify and prevent overflow, special damages of Kshs. 50,000,000/=, Kshs. 250,000/= for an evaluation report, general damages of Kshs. 70,000,000/= and costs. The 2nd Defendant denied liability and pleaded limitation; at trial its witness testified that the reservoir stores only treated water, discharges under a licence into a seasonal stream (the natural watercourse), and that the Plaintiff had walled across the stream without leaving a riparian wayleave. The court, which conducted a site visit, found that the Plaintiff's expert evidence related only to 2016 and 2017 and could not establish the pleaded historical discharges, that no laboratory tests were done, and that no special or general damages were proved. The court granted prayer (a), an injunction restraining the Defendants from discharging waste water or effluence into Galot Estate, declined prayers (b) to (e), directed the Defendants to comply with EMCA water pollution control standards, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the Plaintiff proved negligence and discharge of pollutants by the Defendants during 1996-2004

Holding

Not proved - no evidence was led of the activities alleged in the pleaded years; the expert evidence related only to 2016 and 2017 site visits

Reasoning

The court noted the temporal mismatch between the pleaded causes of action (discharges in 1996, 2001-2004) and the expert testimony based on 2016/2017 visits. One expert conceded laboratory tests would be necessary to confirm pollutants and could not speak to events between 1997 and 2004. The water sampling team did not analyse the water. The claim of historical pollution therefore failed for want of proof.

p. 3
02

Whether the Defendants' reservoir discharges were lawful

Holding

The Defendants held a discharge license permitting discharge of excess water into the seasonal stream (the natural watercourse), and no water treatment occurred at the reservoir

Reasoning

The 2nd Defendant's witness explained that the reservoir, commissioned in 1996, only stores and distributes water already treated at Ng'ethu, and discharges overflow and washout water into a seasonal stream through a discharge pipe under a discharge license. Chlorine levels were minimal (0.4 ppm) and nitrates and phosphates are never used. The Plaintiff's dam was built on the stream's natural course without a riparian wayleave, contributing to any overflow damage.

p. 3
03

Whether special and general damages were proved

Holding

Not proved; the court declined to award either

Reasoning

The Plaintiff claimed Kshs. 50,000,000/= special damages, Kshs. 250,000/= for the evaluation report, and Kshs. 70,000,000/= general damages, but produced no evidence to substantiate any of these sums. He had not rehabilitated the dam since 1996 and produced no correspondence confirming reports to the 1st Defendant. The claims failed on proof.

p. 4
04

Whether an injunction should issue restraining further discharge into the Plaintiff's land

Holding

Granted, being prayer (a) of the Amended Plaint, coupled with a direction that the Defendants comply with water pollution control standards under EMCA

Reasoning

Despite dismissing the historical damages claim, the court granted the injunction and directed the Defendants to comply with EMCA water pollution control standards, failing which the Plaintiff may move NEMA to enforce EMCA and its Regulations relating to water pollution prohibition.

p. 4

Legal principles established

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  • A party who alleges pollution damage over a historical period must lead evidence of the activities alleged during that period; expert testimony confined to later visits cannot establish the historical claim
  • Special damages must be specifically pleaded and strictly proved
  • A plaintiff who obstructs the natural flow of a watercourse, such as by walling across a seasonal stream, risks damage caused by that obstruction being attributed to himself

Court orders

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  1. 1.Prayer (a) of the Amended Plaint dated 5/5/2010 granted - an injunction restraining the Defendants from discharging waste water or effluence into the Plaintiff's land, Galot Estate
  2. 2.Prayers (b), (c), (d) and (e) of the Amended Plaint declined
  3. 3.The Defendants directed to comply with the water pollution control standards established under the Environmental Management and Coordination Act, failing which the Plaintiff may move NEMA to enforce EMCA and its Regulations
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Environmental Management and Coordination Act (EMCA)Section 75
  • Water Quality Regulations of 2006Regulations 6 and 11
  • Water Act of 2016
  • Constitution of KenyaArticles 42 and 70

Cases cited (2)

  • John Mutungu Waititu v China Wu Yi (Kenya) Company Limited
    [2018] eKLR
  • Rodgers Muema Nzyoka and 2 other v Tiomin Kenya Limited
    [2001] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over claims relating to pollution and degradation of the environment (suit transferred from the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mohan Galot v City Council of Nairobi & Nairobi City Water and Sewerage Company (Environment & Land Case 910 of 1997)  (Environment and Land) [2019] KEELC 1879 (KLR)", Case Analysis (2019). ELC Case No. 910 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1879/eng@2019-08-08

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