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ELCDismissedNot stated in judgment (Plaint dated 28th April 2017)· [2020] KEELC 2126 (KLR)

James Ngugi Kariuki v Peter Kamau Kariuki [2020] KEELC 2126 (KLR)

Environment and Land Court
15 June 2020
LGL. Gacheru
2,307 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, James Ngugi Kariuki, sued his elder brother and neighbour, Peter Kamau Kariuki, claiming that eucalyptus trees planted on the Defendant's parcel (Escarpment Jet Scheme/1380), about two units from the common boundary with the Plaintiff's parcel (Escarpment Jet Scheme/1379), constituted a nuisance and strict liability. He sought an order compelling the Defendant to cut down all trees within 10 meters of the boundary and uproot the stumps, general damages for loss of economic use and income of about Kshs. 100,000 per year since 2013, and costs. The Defendant denied the claim, asserting the Plaintiff participated in planting the trees, that the suit was actuated by malice after he stopped weekly financial support, and that he was entitled to let the trees mature for harvest. Each party testified alone, without witnesses. The court, L. Gacheru J, framed the issue as whether the Plaintiff was entitled to the prayers sought. It applied the rule in Rylands v Fletcher and Section 107 of the Evidence Act, holding that the Plaintiff bore the burden of proof. Although a Sub-County Forest Officer's report was produced, the officer was not called as a witness, the relevant Agricultural Act sections were never quoted, and there were no photographs of the trees or the alleged crop failure, nor any assessment of damaged crops. The Plaintiff's evidence remained mere allegations, failing the balance of probabilities. The Defendant's malice allegation was also unsupported. The suit was dismissed entirely with each party bearing his own costs, given their brotherhood. The judgment was delivered online under COVID-19 directions, with the parties waiving compliance with Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Whether the Plaintiff proved nuisance and crop failure caused by the Defendant's eucalyptus trees

Holding

The Plaintiff failed to prove his case to the required standard; his evidence remained mere allegations

Reasoning

Although the Defendant did not dispute planting trees, the Plaintiff alleged the trees were only 2 meters from the boundary contrary to agricultural practice requiring 10 meters. He produced a report from the Sub-County Forest Officer who was not called as a witness, and no photographs of the trees or the alleged crop failure, nor any assessment of damaged crops by an agricultural officer. The Assistant Chief and Chief were also not called. The Plaintiff's allegations therefore fell short of the balance of probabilities.

p. 3
02

Whether the Defendant's allegation of malice was proved

Holding

No evidence was tendered to support the Defendant's allegation that the suit was actuated by malice

Reasoning

The Defendant claimed the suit was brought maliciously after he stopped weekly financial support to the Plaintiff, and that the Plaintiff had participated in planting the trees. The court found no evidence tendered to support the malice allegation, but since it was the Plaintiff who alleged the nuisance, he bore the burden of proving his case regardless.

p. 3

Legal principles established

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  • The rule in Rylands v Fletcher: a person who brings on his land anything likely to do mischief if it escapes must keep it at his own peril and is prima facie answerable for the damage which is the natural consequence of its escape
  • He who alleges must prove; the burden of proof lies on the person asserting the facts (Section 107 of the Evidence Act)

Court orders

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  1. 1.The Plaintiff's suit is dismissed entirely
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Evidence ActSection 107(1) and (2)
  • Agricultural ActRelevant sections (never quoted or referred to in evidence)
  • Civil Procedure RulesOrder 21 rule 1 (waived for online delivery of judgment)

Cases cited (1)

  • Raylands –vs- Fletch (Rylands v Fletcher)
    (1866) 1 EX 265
Jurisdiction invoked
Original civil jurisdiction over a claim in nuisance concerning adjoining parcels of land (suit founded on the tort of nuisance and strict liability)

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, "James Ngugi Kariuki v Peter Kamau Kariuki [2020] KEELC 2126 (KLR)", Case Analysis (2020). Not stated in judgment (Plaint dated 28th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2126/eng@2020-06-15

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