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ELCDismissedKerugoya ELC Case (plaint dated 20/04/2011, Further Amended 07/12/2017)· [2022] KEELC 1741 (KLR)

Samuel H. Kanyi v Water Resource Management Authority & another [2022] KEELC 1741 (KLR)

Environment and Land Court
4 February 2022
2,883 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 plaintiff sued the Attorney General, later joined by Tana Water Services Board as interested party, claiming Kshs 6,325,000/= as special damages for property destroyed when water pipes were laid across his land parcel MWERUA/BARICHO/460 in March 2006, including destroyed water tanks, ruined ceilings, cabinets, floors, walls and doors, non-user of the land, damaged crops and a failed sale, plus an order to dig out the pipes. The plaintiff testified with two witnesses, including a valuer who assessed the loss at Kshs 6,325,000/=. The interested party's evidence, which was uncontroverted, established that during the pendency of the suit the parties had agreed an out-of-court compromise of Kshs 1,343,928/=, under which Kshs 1,000,000 was paid and acknowledged before the plaintiff reneged and returned to court; the compromise also included re-routing the pipes to the southern boundary. The court framed two issues: whether the plaintiff had proved his claim on a balance of probabilities, and costs. Applying Banque Indo Suez v DJ Lowe and Sections 107 and 109 of the Evidence Act, the court held that special damages require strict proof, which failed: the valuer produced no practising certificate, no advertisements, no sale agreements for comparables and no photographs of the damaged items. The claim was dismissed as made in bad faith and scandalous. The court directed the interested party to pay the balance of Kshs 343,000/- within 60 days, to re-route the pipes as agreed, and ordered each party to bear her own costs.

Key legal issues

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01

Whether the plaintiff proved his claim for special damages on a balance of probabilities

Holding

The claim was not proved; the valuation report was discredited because the valuer produced no practising certificate, no advertisements, no sale agreements for comparables and no photographs of the damaged items

Reasoning

The claim was one for special damages requiring strict proof. The plaintiff's valuer admitted on cross-examination that he had no proof of his qualification as a valuer, undermining the valuation report. No advertisements, sale agreements or photographs corroborated the alleged loss. The Court of Appeal decision in Banque Indo Suez v DJ Lowe was held binding. The Court also found the claim made in bad faith since the plaintiff had already accepted and acknowledged Kshs 1,000,000 under an out-of-court settlement before reneging.

p. 3
02

Effect of the out-of-court settlement between the plaintiff and the interested party

Holding

The parties had agreed a compromise of Kshs 1,343,928/- of which Kshs 1,000,000 was paid and acknowledged; the court directed the parties to honour the remaining obligations

Reasoning

The interested party's evidence of the settlement and part-payments was uncontroverted. The plaintiff acknowledged receipt of Kshs 700,000 and later Kshs 300,000, then reneged and returned to court. The court found the claim made in bad faith and scandalous and enforced the balance of the agreed settlement, including the re-routing of pipes.

p. 3

Legal principles established

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  • Special damages must not only be specifically pleaded but must also be strictly proved.

Court orders

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  1. 1.The Interested Party to pay the plaintiff the sum of Kshs 343,000/- within 60 days from the date of judgment being the balance of the agreed out-of-court settlement
  2. 2.The Interested Party to reroute the water pipes traversing the middle of the plaintiff's land as agreed between them
  3. 3.Each party to bear her own costs

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 109
  • Water Act

Cases cited (1)

  • BANQUE INDO SUEZ VS DJ LOWE AND COMPANY LIMITED
    (2000) e KLR
Jurisdiction invoked
Environment and Land Court jurisdiction over the land dispute (land parcel MWERUA/BARICHO/460)

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, "Samuel H. Kanyi v Water Resource Management Authority & another [2022] KEELC 1741 (KLR)", Case Analysis (2022). Kerugoya ELC Case (plaint dated 20/04/2011, Further Amended 07/12/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1741/eng@2022-02-04

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