Amaka Development Ltd v County Government of Taita Taveta [2021] KEELC 1128 (KLR)
The bottom line
#A Kenyan court ordered Taita Taveta County to pay Kshs. 68.3 million for diverting a storm drain into private land, and to fix it within 12 months.
What this practically means
#Executive summary
#Key legal issues
#Limitation and continuing nuisance
The suit is not time barred because the nuisance is continuing; a fresh cause of action arises as often as fresh damage accrues, though damages are limited to the three years before filing suit
The diversion occurred in 1999 but the drain remains on the plaintiff's land and continues to cause damage. Applying Clerk & Lindsell on Torts, where the act creates a continuing source of injury, a fresh cause of action arises de die in diem. However, damages can only be recovered for the three-year window before filing suit, so only losses from 26 June 2012 are recoverable.
Statutory responsibility for the drain
The defendant and its predecessor bore the duty to maintain storm water drainage; the attempt to shift responsibility to the National Government or TAVEVO Water failed
Under Sections 168-176 of the repealed Local Government Act, local authorities established and maintained sewerage and drainage works. After devolution, storm water management systems and water and sanitation services became county functions under Part 2, Section 11 of the Fourth Schedule to the Constitution. Any diversion by the National Government during road works did not transfer the duty to restore the drain away from the defendant.
Plaintiff's title and building approvals
The plaintiff is the registered proprietor and the defendant's claim that the plaintiff built without approvals is irrelevant to liability
The title produced shows transfer to the plaintiff on 27 May 2010. Whether the plaintiff's buildings were approved does not alter the existence of a public health hazard caused by a public drain on private land or the defendant's duty to maintain it. No design was produced showing the drain was meant to pass through the plot permanently.
Entitlement to declarations, re-routing and restoration order
The plaintiff made out a case for the declarations in prayers (a) and (b), the re-routing order in prayer (c), and an environmental restoration order under Section 111 of EMCA
The defendant breached its statutory duty to maintain drains in a hygienic state, ignored Public Health notices and a NEMA improvement order, and thereby infringed the plaintiff's Article 42 right to a clean and healthy environment, enforceable under Article 70 without a constitutional petition. Section 111 EMCA empowers the court to issue restoration orders.
Quantum of damages
Special damages of Kshs. 610,000/= per month awarded from 26 June 2012 to judgment, totalling Kshs. 68,320,000/=, with continuing damages if the nuisance is not abated within 12 months
The plaintiff's valuer assessed the rent payable and the defendant produced no evidence to challenge the assessment. Damages are limited to the three-year limitation window. The defendant was given 12 months to abate the nuisance; failing compliance, it remains liable for Kshs. 610,000/= per month until the repairs are done.
Legal principles established
#- A continuing nuisance gives rise to a fresh cause of action de die in diem for limitation purposes, but damages are recoverable only for the period within the statutory limitation period preceding suit
- A constitutional right (Article 42) may be asserted in ordinary civil proceedings without a constitutional petition
- A county government (and previously the municipal council) bears the statutory duty to maintain storm water drainage systems in built-up areas
- Special damages must be both pleaded and specifically proved
Court orders
#- 1.Declaration that the diversion of the storm water drainage into the plaintiff's parcel LR No. 1956/504 was illegal and unlawful (prayer (a))
- 2.Declaration that the defendant's neglect of the drainage infringes the plaintiff's entitlement to a clean and healthy environment (prayer (b))
- 3.Order compelling the defendant to re-route the storm water drainage to pass within the approved sanitary lane along the road reserve (prayer (c))
- 4.Environmental restoration order under Section 111 of EMCA compelling the defendant to remove the drain pipe from the plaintiff's land and create safe, hygienic public drain pipes
- 5.Damages of Kshs. 610,000/= per month (Kshs. 7,320,000/= per annum) from 26 June 2012 to the date of judgment, total Kshs. 68,320,000/=, with interest from the date of filing suit till payment
- 6.Defendant given 12 months to take corrective action and remove the nuisance, failing which it shall pay Kshs. 610,000/= per month from the date of judgment until compliance
- 7.Defendant to pay the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; environmental rights under Articles 42 and 70 of the Constitution and Section 111 of EMCA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amaka Development Ltd v County Government of Taita Taveta [2021] KEELC 1128 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1128/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.