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ELCPartially AllowedPlaintiff's plaint dated 31st March 2014 (filed 4th April 2014)· [2021] KEELC 2394 (KLR)

Lincoln Kivuti Karingi & another v Michael Njuguna Makindu [2021] KEELC 2394 (KLR)

Environment and Land Court
19 July 2021
SOS. Okong'o
4,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 Plaintiffs, registered proprietors of L.R No. 14225/213, sued the owner of the adjoining L.R No. 14225/87 claiming that soil deposited by the Defendant in 2010 raised the adjoining property by about 2 metres, exerted pressure on the shared masonry perimeter wall and caused it to collapse on 13th December 2013. They sought declarations, removal of the soil, a permanent injunction, special damages of Kshs. 2,287,402.64 and general damages. The Defendant admitted depositing soil but said it was to reclaim his lower-lying land from storm water and sewage from the Plaintiffs' property, and blamed the collapse on poor workmanship. The Plaintiffs called a consultant engineer (PW2) who, in a September 2013 report, found the wall was suffering distress from 1.2 metres of soil backfill and recommended its removal; the Defendant ignored a demand letter and the wall collapsed four months later. The court framed three issues: causation of the collapse, loss and damage, and entitlement to relief. It found negligence proved on a balance of probabilities, holding that the Defendant's failure to take remedial action after notice was itself negligent and that possible poor workmanship did not absolve him. However, the Defendant had sold the adjoining property to a third party who built a new wall, so the injunctive and soil-removal prayers failed as overtaken by events. Only Kshs. 20,000 special damages for the temporary fence were proved; the engineering fees were exorbitant and payment unproved, and reconstruction costs were refused. The court awarded Kshs. 20,000 special damages with interest, Kshs. 50,000 nominal general damages for nuisance with interest, and costs of the suit.

Key legal issues

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01

Whether the collapse of the Plaintiffs' boundary wall was caused by the Defendant's negligence

Holding

Yes. The Plaintiffs proved on a balance of probabilities that the wall collapsed because of soil the Defendant deposited against it on the adjoining property.

Reasoning

PW2, a consultant engineer, inspected the wall before the collapse, found a 1.2-metre level difference caused by the soil backfill, concluded the masonry wall could not withstand the horizontal forces and recommended removal of the soil. The Defendant ignored a demand letter. His defence of poor workmanship and sewage damage was unsupported by convincing evidence.

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02

Whether the Plaintiffs suffered loss and damage

Holding

Yes. The wall was part of the property acquired for value and its collapse deprived the Plaintiffs of its use and value.

Reasoning

The court found the wall had been constructed at a cost and formed part of what the Plaintiffs purchased in 2006. Its collapse meant loss of both use and value, establishing damage for the purposes of negligence and nuisance.

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03

Which reliefs the Plaintiffs were entitled to

Holding

Only special damages of Kshs. 20,000 (proved), nominal general damages of Kshs. 50,000 for nuisance, and costs. Prayers (a), (b) and (c) and most of the special damages claim failed.

Reasoning

The adjoining property had been sold and a new wall built by the new owner, mooting the injunctive and removal reliefs; the engineering fees were exorbitant and payment unproved; reconstruction costs were unjustified since a new wall existed; general damages were purely compensatory with no further loss proved.

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Legal principles established

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  • A landowner owes a duty of care to adjoining landowners to ensure that soil deposited on his land does not damage the neighbour's structures; failure to take remedial action once alerted to the danger is itself negligent, and pre-existing weakness of the neighbour's structure does not absolve the landowner.
  • The burden of proving negligence lies on the party alleging it, on a balance of probabilities.

Court orders

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  1. 1.Judgment for the Plaintiffs against the Defendant for Kshs. 20,000/- being special damages together with interest at court rates from the date of filing suit until payment in full.
  2. 2.Kshs. 50,000/- as general damages together with interest at court rates from the date hereof until payment in full.
  3. 3.Costs of the suit to the Plaintiffs.

Authorities

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Legislation

  • Evidence Act, Chapter 80 Laws of KenyaSection 109

Cases cited (3)

  • Mohazo EPZ Ltd. v New Wide Garments EPZ Limited & another
    [2020] eKLR
  • Rylands v Fletcher
    [1868] UKHL 1
  • Donoghue v Stevenson
    [1932] AC 562
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim in nuisance and negligence concerning land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lincoln Kivuti Karingi & another v Michael Njuguna Makindu [2021] KEELC 2394 (KLR)", Case Analysis (2021). Plaintiff's plaint dated 31st March 2014 (filed 4th April 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2394/eng@2021-07-19

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