Jane Wagathuitu Githinji & 2 others v Sojanmi Springfields Limited & 2 others [2019] KEELC 2672 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Source of flooding and degradation of plaintiffs' land
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
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.
Liability under Rylands v Fletcher
The 1st defendant is strictly liable for the escape of harvested and stored water even absent negligence
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.
Contamination/effluent claim
Not proved to the required standard that water discharged from the 1st defendant's farm is contaminated
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.
Validity of the EIA licences
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
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.
Jurisdiction vis-à-vis the National Environment Tribunal
The suit is properly before the ELC since it extends beyond a complaint about an EIA licence
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.
Legal principles established
#- 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
#- 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.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.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.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.NEMA barred from issuing an EIA licence for a second dam before a full environmental impact assessment study is conducted
- 6.NEMA directed, in consultation with relevant agencies, to undertake a dam integrity test and give requisite guidance
- 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
- 8.1st defendant ordered to ensure full compliance with the restoration orders issued by NEMA
- 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
- 10.3rd defendant directed to assess damage to area infrastructure and consider rehabilitation measures
- 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
- 12.1st 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.Plaintiffs awarded costs of the suit against the 1st and 2nd defendants; no orders as to costs for or against the 3rd defendant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.