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ELCPartially AllowedThika ELC No. 372 of 2017 (formerly HCCC No. 5348 of 1990, consolidated with HCCC Nos. 5730, 5351, 5349 and 5350 of 1990)· [2019] KEELC 2631 (KLR)

Daniel Mucheru & others v Nairobi City Council & 2 others [2019] KEELC 2631 (KLR)

Environment and Land Court
14 June 2019
7,557 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Five landowners won Kshs 2.1 million each from Nairobi City Council after dam blasting damaged their land, but lost bigger claims they never properly pleaded.

What this practically means

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Executive summary

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Five consolidated suits (HCCC Nos. 5730, 5351, 5348, 5349 and 5350 of 1990, transferred and heard as Thika ELC No. 372 of 2017) were brought by landowners near Ndakaini Dam against Nairobi City Council (Defunct) and the contractor who excavated a quarry using explosives during construction of the 3rd Nairobi Water Supply Project. The Plaintiffs claimed general damages, an injunction and costs, alleging blasting, tremors and dust cracked their houses, destroyed roofs and tea bushes, disturbed their families and rendered their land unusable. Five Plaintiffs testified; the Defendants called no evidence. The Court framed two issues: whether the Plaintiffs' rights to the suit property were extinguished, and whether they were entitled to the reliefs sought. It held that rights over the compulsorily acquired portions were extinguished when the Government took possession, but the Plaintiffs' rights over the unacquired portions survived; the real dispute was nuisance, not ownership. On liability, the 1st Defendant's claim that the contractor was independent failed because it withheld the contract agreement despite a Notice to Produce, triggering an adverse presumption. Nuisance and damage were proved by the Risk Zone Map, the Agricultural Officer's report, photographs and newspaper accounts. However, unpleaded special damages were disallowed as the Plaintiffs were bound by their 1990 pleadings. Judgment was entered jointly and severally for each Plaintiff for general damages of Kshs. 2,000,000/= and incidental damages of Kshs. 100,000/=, with costs and interest from filing until payment in full.

Key legal issues

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01

Whether the Plaintiffs' rights to the suit properties were extinguished by compulsory acquisition

Holding

Rights over the acquired portions were extinguished when the Government took possession, but the Plaintiffs remained in occupation of the unacquired portions, over which their rights were never extinguished

Reasoning

The Court found that gazetted compulsory acquisition under the Land Acquisition Act vested the acquired acreages in the Government absolutely. The Plaintiffs could not complain about compensation as they never sought orders on that. However, since the Plaintiffs stayed on their land throughout and to date, only the acquired portions were extinguished; their claims sounded in nuisance and environmental damage, not ownership.

p. 8
02

Liability of the 1st Defendant for the 2nd Defendant's quarrying and blasting activities

Holding

The 1st Defendant was liable as it had the mandate of constructing the Ndakaini Dam and produced no evidence of an independent-contractor relationship

Reasoning

The 1st Defendant alleged the 2nd Defendant was an independent contractor but, despite a Notice to Produce, never produced the contract agreement. Relying on the adverse presumption for withheld evidence, the Court held there was no proof of independence; the 1st Defendant, having commissioned the project, could not escape liability.

p. 10
03

Whether the Plaintiffs proved nuisance and damage and what remedies they merit

Holding

Nuisance and damage were proved on a balance of probabilities; general damages of Kshs. 2,000,000/= per Plaintiff and incidental damages of Kshs. 100,000/= each were awarded, but unpleaded special damages were refused

Reasoning

The Security Risk Range Map, the Agricultural Officer's report of 17th June 2004, photographs and the Daily Nation reports showed the Plaintiffs' parcels lay within the risk zone; blasting, tremors and dust cracked houses and destroyed tea. General damages need not be specifically pleaded. Special damages, being unpleaded, were disallowed; the Defendants called no evidence.

p. 11

Legal principles established

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  • Upon compulsory acquisition and taking of possession, land vests in the Government absolutely free from encumbrance and the former owner's rights over the acquired portion are extinguished
  • Parties are bound by their pleadings; evidence at variance with the pleadings goes to no issue and must be disregarded
  • Where a party fails to produce evidence in its possession, a presumption arises that such evidence would be unfavourable to that party
  • General damages need not be specifically pleaded or proved; the law presumes they flow from the wrong complained of

Court orders

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  1. 1.Each of the Plaintiffs is awarded general damages of Kshs. 2,000,000/=
  2. 2.Plaintiffs are entitled to costs of the suit and interest at the Court rate from the date of filing of the suits to the date of payment in full
  3. 3.Each of the Plaintiffs is awarded incidental damages of Kshs. 100,000/=
  4. 4.Judgment entered for the Plaintiffs against the Defendants jointly and severally

Authorities

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Legislation

  • Evidence ActSection 107
  • Land Acquisition Act (Repealed)Section 19(4)
  • Constitution of Kenya 2010

Cases cited (9)

  • Kenya National Highway Authority vs Shalien Masood Mughal & 5 others
    (2017) eKLR
  • Erastus Njonjo Mote & 3 others vs Attorney General & 2 others
    (2017) eKLR
  • Niaz Mohammed Jan Mohammed vs The Commissioner of Lands & 4 Others
    (1996) eKLR
  • Independent Electoral and Boundaries Commission & another vs Stephen Mutinda Mule & 3 Others
    (2014) eKLR
  • Adetuon Oladeji NIG Ltd vs Nigeria Breweries PLC
    S.C 1/2002
  • Duncan Nderitu Ndegwa vs Kenya Pylic Company Ltd & Another
    (2013) eKLR
  • Abdnego Mutunga Muinde vs Republic
    (2018) eKLR
  • Nguku vs Republic
    (1985) KLR 412
  • Mike Maina Kamau vs The Attorney General
    ELC No. 1303 of 2014
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land, nuisance and environmental damage (suits transferred from the High Court as HCC 5348 of 1990 to Nairobi ELC 816 of 2014 and subsequently Thika ELC No. 372 of 2017)

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, "Daniel Mucheru & others v Nairobi City Council & 2 others [2019] KEELC 2631 (KLR)", Case Analysis (2019). Thika ELC No. 372 of 2017 (formerly HCCC No. 5348 of 1990, consolidated with HCCC Nos. 5730, 5351, 5349 and 5350 of 1990). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2631/eng@2019-06-14

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