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ELCPartially AllowedELC Case of 2018· [2022] KEELC 921 (KLR)

Rhoda S Kilu v Jianxi Water and Hydropower Construction Kenya Ltd [2022] KEELC 921 (KLR)

Environment and Land Court
9 March 2022
CNC.K. Nzili
6,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered a road contractor to pay a landowner over Kshs. 140 million for excavating murram from her land without consent.

What this practically means

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Executive summary

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The plaintiff, the recorded owner of fourteen parcels in Kirindine 'B' Adjudication Section under the Land Adjudication Act, sued the defendant for trespass, alleging that between April 2018 and February 2020 the defendant excavated murram, soil and rock from her land for the construction of the Athi–Kimongoro–Nkija–Ugoti–Katithine–Auki Thii-Gaiti and Kijiji Thii-Gaiti Road and the access road to Meru University without her consent, destroying about 30 acres of vegetation and leaving quarries and gullies. She sought permanent injunction, special damages of Kshs. 134,180,500/=, general damages and aggravated, punitive and exemplary damages. The defendant denied trespass, contending it had contracted with one Mwiti Mbaya Ntoiti, the alleged physical occupier, under lease agreements and had compensated him. The court found the plaintiff was the recorded owner, that her evidence stood unchallenged, and that the defendant had admitted entry and excavation. The defendant failed to produce the lease agreement, payment records or any contrary expert report, and was held to have disregarded the plaintiff's rights even after demand notice and a court order. Relying on uncontroverted expert valuation evidence, the court found the special damages proved and held the defendant liable under the Environmental Management and Coordination Act for failing to carry out an environmental impact assessment or rehabilitate the site, applying the polluter pays principle. Judgment was entered for the plaintiff with a permanent injunction, special damages of Kshs. 109,615,000/=, general damages of Kshs. 5,000,000/=, aggravated damages of Kshs. 5,000,000/=, Kshs. 25,000,000/= for restoration, costs and interest.

Key legal issues

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01

Ownership of the suit parcels

Holding

The plaintiff was the recorded owner of the suit parcels at the material time.

Reasoning

The plaintiff produced a letter from the adjudication and settlement officer confirming the suit parcels fell under Kirindine 'B' adjudication section and were recorded in her favour at the Records Stage. The defendant produced no document to challenge the validity of the plaintiff's ownership documents and failed to call the administrator it allegedly dealt with.

p. 4
02

Whether the defendant trespassed

Holding

The defendant entered and excavated materials from the suit parcels without the plaintiff's consent, committing trespass.

Reasoning

The fact of entry, occupation and excavation was admitted in the defence and in oral testimony. The defendant failed to tender documentary evidence of the lease agreement or payment to the alleged owner, failed to verify ownership at the lands office after notice, and continued after service of court orders.

p. 5
03

Special damages for the value of excavated murram and rehabilitation

Holding

Special damages of Kshs. 108,710,500/= for murram plus Kshs. 25,000,000/= for rehabilitation and monitoring were proved.

Reasoning

PW2, a licensed valuer, produced a valuation report quantifying the murram excavated and the cost of restoring the pits. The defendant produced no contrary expert report, no decommissioning report, and admitted a duty to restore, but showed no restoration had been undertaken to the plaintiff's satisfaction.

p. 7
04

Environmental obligations and restoration order

Holding

The defendant failed to undertake an environmental impact assessment or rehabilitation as required under the Environmental Management and Coordination Act, and the court ordered restoration.

Reasoning

The quarrying fell under Schedule 2 of EMCA requiring an EIA. The defendant produced no decommissioning report or approvals from NEMA, KURA or other agencies. Under Section 11 of EMCA and Article 70 of the Constitution, the court may make a restoration order and order compensation; the polluter pays principle applies.

p. 6
05

General, aggravated, punitive and exemplary damages

Holding

General damages of Kshs. 5,000,000/= and aggravated/exemplary damages of Kshs. 5,000,000/= awarded.

Reasoning

The defendant occupied the parcels for two years and benefited from the trespass. Its cynical disregard of the plaintiff's rights after demand notice and service of a court order justified exemplary damages, though the plaintiff produced no rental valuation evidence.

p. 7

Legal principles established

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  • Special damages must be specifically pleaded and proved with a degree of certainty and particularity.
  • Evidence of an expert can only be challenged by evidence of another expert; unchallenged expert evidence stands.
  • A party must verify the correct owner of land before entry and use; entry without the recorded owner's consent constitutes trespass.

Court orders

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  1. 1.Permanent injunction restraining the defendant from further trespassing into, entering onto, committing acts of waste on, alienating and/or interfering with the suit parcels.
  2. 2.Special damages of Kshs. 109,615,000/=.
  3. 3.General damages of Kshs. 5,000,000/=.
  4. 4.Aggravated, punitive and exemplary damages of Kshs. 5,000,000/=.
  5. 5.Kshs. 25,000,000/= for the restoration and rehabilitation of the suit parcels of land.
  6. 6.Costs of the suit to the plaintiff.
  7. 7.Interest on the special, general and aggravated damages at court rates.
Jurisdiction invoked
Environment and Land Court Act; Articles 40, 42 and 70 of the Constitution; Section 11 of the Environmental Management and Coordination Act

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, "Rhoda S Kilu v Jianxi Water and Hydropower Construction Kenya Ltd [2022] KEELC 921 (KLR)", Case Analysis (2022). ELC Case of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/921/eng@2022-03-09

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