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ELCPartially AllowedEnvironment and Land Court at Nakuru, Civil Suit filed 19 October 2017 (plaint dated 19 October 2017)· [2019] KEELC 2672 (KLR)

Jane Wagathuitu Githinji & 2 others v Sojanmi Springfields Limited & 2 others [2019] KEELC 2672 (KLR)

Environment and Land Court
19 June 2019
22,527 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Nakuru court held a flower farm strictly liable for flooding neighbours' land from its burst dam, ordered rehabilitation or compensation, and revoked its improperly issued EIA licence.

What this practically means

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Executive summary

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Three landowners downstream of the 1st defendant's flower farm in Njoro, Nakuru County, sued over flooding and degradation of their land following the bursting of the 1st defendant's dam in 2014 and the continuous discharge of water from the farm's greenhouses. They sought rehabilitation costs, a permanent injunction against effluent discharge, general and exemplary damages, costs and interest, and challenged EIA licences issued by NEMA. The court, with the parties, conducted extensive site visits. It found serious degradation of the plaintiffs' land, established a direct causal link between the burst dam, the new water channel and the flooding, and rejected the 1st defendant's act-of-God/natural-wetland defence, holding the 1st defendant strictly liable under the rule in Rylands v Fletcher and the polluter pays principle. However, the claim of chemical contamination of the water failed for want of reliable expert proof. The court found that the EIA licence for the dam was improperly issued on a mere project report rather than a full EIA study report as required by Section 58 of EMCA and the Second Schedule, that the lead expert's signature was forged, and that public participation was inadequate; it faulted NEMA for lax licensing and monitoring. The court revoked the dam's EIA licence, directed fresh EIA processes, water quality testing, soak pit assessment, a dam integrity test, a study of the changed hydrology, and infrastructure rehabilitation by the County Government. The 1st defendant was ordered to rehabilitate the plaintiffs' land within three months or pay their assessed value, and to pay loss of user damages. Permanent injunction and exemplary damages were refused. Costs were awarded against the 1st and 2nd defendants only.

Key legal issues

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01

Source of flooding and degradation of plaintiffs' land

Holding

The burst dam of the 1st defendant created a new water channel and the continuous discharge from the 1st defendant's farm caused the flooding and degradation; not a natural phenomenon

Reasoning

The court conducted site visits, observed the gulley and new channel, and found no features showing the channel pre-existed. The old seasonal channel never reached the plaintiffs' land. No rainfall data supported the 1st defendant's act-of-God claim. Human activity from the greenhouses and dam altered the hydrology, creating direct cause and effect.

p. 14
02

Liability under Rylands v Fletcher

Holding

The 1st defendant is strictly liable for the escape of harvested and stored water even absent negligence

Reasoning

The 1st defendant harvested and stored rainwater in a dam and released excess water onto the plaintiffs' land. The dam burst due to poor design; even if not, res ipsa loquitur applies since properly designed dams do not ordinarily burst. EIA approvals and due care do not defeat strict liability.

p. 15
03

Contamination/effluent claim

Holding

Not proved to the required standard that water discharged from the 1st defendant's farm is contaminated

Reasoning

The plaintiffs' expert used an unauthenticated gadget and no accredited laboratory; he did not isolate the specific chemicals or link them to the 1st defendant's operations. The post-mortem on the dead cows did not connect nitrate poisoning to the 1st defendant's chemicals. Suspicions remained but proof was insufficient.

p. 16
04

Validity of the EIA licences

Holding

The EIA licence for the dam was irregularly issued on a mere project report; the 2013 dam EIA bore a forged signature and public participation requirements were not met

Reasoning

Storage dams fall under the Second Schedule to EMCA requiring a full EIA study report. Only a project report was done, gazettement and 60-day comment period never followed, and the lead expert disowned the signature. NEMA was also faulted for failing to monitor the project after licensing.

p. 19
05

Jurisdiction vis-à-vis the National Environment Tribunal

Holding

The suit is properly before the ELC since it extends beyond a complaint about an EIA licence

Reasoning

Section 129 of EMCA confines NET appeals to licensing decisions; this suit also concerns the dam burst, compensation, and continuous flow of water, which are outside NET's remit.

p. 12

Legal principles established

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  • A person who brings and keeps on his land anything likely to do mischief if it escapes is strictly liable for the damage caused by its escape, per the rule in Rylands v Fletcher
  • Projects listed in the Second Schedule to EMCA, including storage dams, require a full EIA study report, not merely a project report, before an EIA licence may issue
  • Public participation in an EIA must be qualitative, targeting those most likely to be affected by the project

Court orders

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  1. 1.NEMA directed to liaise with relevant agencies to ensure water quality discharged within and without the 1st defendant's farm is not contaminated and safe to discharge
  2. 2.NEMA directed to assess the quality, capacity and effectiveness of the soak pits used by the 1st defendant and provide guidance on discharge and treatment of chemicals
  3. 3.Declaration that it was improper and contrary to Section 58 of EMCA and the Second Schedule for NEMA to issue an EIA licence for the dam based only on a project report
  4. 4.The EIA licence for the construction of the dam declared to have been issued contrary to law and revoked; 1st defendant directed to undertake a fresh EIA within 60 days or decommission the dam
  5. 5.NEMA barred from issuing an EIA licence for a second dam before a full environmental impact assessment study is conducted
  6. 6.NEMA directed, in consultation with relevant agencies, to undertake a dam integrity test and give requisite guidance
  7. 7.NEMA directed to investigate whether an EIA licence was applied for the 13 additional greenhouses, and if no EIA was conducted, direct one within 60 days failing which the greenhouses be decommissioned
  8. 8.1st defendant ordered to ensure full compliance with the restoration orders issued by NEMA
  9. 9.NEMA directed to undertake a study of the changed topography and hydrology of the Mwihoti area and direct mitigation measures and a master plan
  10. 10.3rd defendant directed to assess damage to area infrastructure and consider rehabilitation measures
  11. 11.1st defendant directed to undertake a rehabilitation programme of the plaintiffs' land within 3 months, failing which to pay the plaintiffs the full value of the wasted land
  12. 12.1st defendant ordered to pay the plaintiffs loss of user (Kshs. 2,100,000 for the 1st plaintiff; Kshs. 944,000 for the 2nd plaintiff; Kshs. 995,000 for the 3rd plaintiff)
  13. 13.Plaintiffs awarded costs of the suit against the 1st and 2nd defendants; no orders as to costs for or against the 3rd defendant

Authorities

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Legislation

  • Environmental Management and Coordination Act, 1999 (EMCA)Sections 3(5), 38, 40, 42, 58(1)-(2), 59, 125, 129; Second Schedule
  • Environmental (Impact Assessment and Audit) Regulations, 2003Section 17
  • Evidence Act, Chapter 80Section 35
  • Standards ActSection 3(3)
  • Physical Planning ActGeneral (approval of development plans)
  • Constitution of Kenya, 2010Articles 10 and 69

Cases cited (5)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Rylands vs Fletcher
    (1861-73) All ER 1
  • Haroun O. Nyamboki vs Catholic University of East Africa (AMECEA)
    (2017) eKLR
  • IEBC & Another vs Stephen Mutinda Mule & 3 Others
    (2014) eKLR
  • Luo Council of Elders & 8 Others vs County Government of Bomet & 24 Others
    (2018) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act; court rejected the argument that the National Environment Tribunal had exclusive jurisdiction

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, "Jane Wagathuitu Githinji & 2 others v Sojanmi Springfields Limited & 2 others [2019] KEELC 2672 (KLR)", Case Analysis (2019). Environment and Land Court at Nakuru, Civil Suit filed 19 October 2017 (plaint dated 19 October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2672/eng@2019-06-19

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