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ELCPartially AllowedNot stated in the judgment (first appeal from Chief Magistrate's Court, Malindi suit over Plot No. 946 Mwele Simakeli Demarcation Section)· [2022] KEELC 3173 (KLR)

Qaydee (Quarry) Limited v Maraga (Appeal 37 of 2020) [2022] KEELC 3173 (KLR)

Environment and Land Court
8 June 2022
MSMUNYAO SILA
4,085 words in judgment
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The bottom line

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A Kenyan court threw out a homeowner's claim that quarry blasting damaged his houses because he had no expert evidence linking the cracks to the blasting.

What this practically means

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Executive summary

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The respondent sued the appellant, a quarry operator, alleging that blasting at its quarry about 400 metres away caused cracks to, and the collapse of, two of his houses on Plot No. 946, Mwele Simakeli Demarcation Section. He claimed general, exemplary and special damages of Kshs. 40,000/= plus costs, pleading negligence and nuisance. He testified with two neighbours as witnesses but did not call the valuer who prepared a Kshs. 2,700,000/= valuation report, which was never produced. The appellant's quarry manager testified that the quarry held NEMA and county approvals, that its methods were safe, and that the area had been mined since the 1930s. On 25 November 2020 the trial Magistrate found the appellant liable for blast-induced damage, declined general damages for want of the valuation report, directed parties to file quantity surveyors' bills of quantities, and awarded Kshs. 200,000/= exemplary damages with costs. On appeal, Munyao Sila J, applying first-appeal principles, held that the respondent failed to prove causation: no expert evidence correlated the damage to blasting or excluded structural defects, the houses were built without approved plans or inspection, and the pleaded particulars of negligence were unproven. The court further held that repair costs were special damages requiring specific pleading and proof, that the post-judgment assessment was wrongful, and that none of the Rookes v Barnard categories for exemplary damages was met. The whole trial judgment was set aside, the respondent's suit dismissed with costs, and the respondent ordered to pay the costs of the appeal.

Key legal issues

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01

Proof of causation in blasting/quarrying nuisance and negligence claims

Holding

The respondent failed to prove that the appellant's blasting caused the damage to his houses; the particulars of negligence were unproven and no expert evidence was tendered

Reasoning

The appellant displayed NEMA and local authority licences, negating the pleaded failures to obtain consents. The land had long been used as a quarry, so it was not used in a non-natural manner. No expert, documentary evidence or even photograph proved the cracks or linked them to blasting to the exclusion of structural defects or poor workmanship. The houses were built without approved plans, permits or inspection, so their structural soundness was unestablished.

02

Weight of uncorroborated lay evidence on technical damage

Holding

Oral evidence of the respondent and two unqualified neighbours could not establish technical damage and causation; the trial court erred in treating it as corroboration

Reasoning

What was in issue required expert assessment. The valuer who prepared the valuation report was not called and the report was never produced as an exhibit. PW-2 and PW-3 had no professional qualifications in building and could not corroborate a technical claim of blast-induced cracking.

p. 5
03

Post-judgment assessment of damages by bill of quantities

Holding

It was wrong for the trial court to direct the filing of quantity surveyors' reports to prove general damages; such repair costs are specific and can only be special damages, which must be specifically pleaded and proved

Reasoning

Damage to houses would be actual, specific and quantifiable, hence special damages. The exact loss, if founded on the unproduced valuation report, ought to have been specifically pleaded in the plaint. Nothing was pleaded or proved, and the valuation report was never tendered, so no award of general damages could stand.

p. 6
04

Exemplary damages in a private quarrying dispute

Holding

The award of Kshs. 200,000/= exemplary damages was without basis; none of the Rookes v Barnard categories was met

Reasoning

The appellant was not a government official, no statute authorised exemplary damages, and no evidence showed the appellant knowingly continued wrongful conduct for profit exceeding the compensation payable. Further, the paltry award of Kshs. 200,000/= against an alleged loss of Kshs. 2,700,000/= could not pass as punitive. The court nonetheless observed that a court may expand the common law categories for egregious conduct.

p. 7

Legal principles established

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  • On a first appeal the court must re-evaluate the evidence and reach its own conclusion, bearing in mind it did not see or hear the witnesses
  • A plaintiff alleging damage from blasting/quarrying must lead expert evidence correlating the damage to the defendant's activities and excluding other causes
  • Loss of a specific and quantifiable nature is special damages which must be specifically pleaded and proved; it cannot be awarded as general damages
  • Exemplary damages are punitive and are awarded, per Rookes v Barnard, in three categories: oppressive/arbitrary/unconstitutional action by government servants, profit-making conduct by the defendant, and where expressly authorised by statute

Court orders

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  1. 1.The whole of the judgment of the magistrate's court is set aside
  2. 2.The respondent's case is substituted with an order of dismissal
  3. 3.The respondent to pay the costs of the suit
  4. 4.The respondent to pay the costs of the appeal

Authorities

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Legislation

  • Environment and Land Court Act (implied by court's appellate jurisdiction)First appeal jurisdiction

Cases cited (5)

  • Gitobu Imanyara & 2 others v Attorney General
    Civil Appeal No. 98 of 2014, [2016] eKLR
  • Rookes vs Barnard
    (1964) AC 1129
  • Huckle v. Money
    (1763) 2 Wils. K.B. 205
  • Benson v. Frederick
    (1766) 3 Burr. 1845
  • Bell v Midland Railway Company
    (1861) 10 CB (NS) 287
On appeal from
Chief Magistrate's Court (magistrate's court)
Not stated
Jurisdiction invoked
First appeal to the Environment and Land Court under its appellate jurisdiction over environment and land matters

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, "Qaydee (Quarry) Limited v Maraga (Appeal 37 of 2020) [2022] KEELC 3173 (KLR)", Case Analysis (2022). Not stated in the judgment (first appeal from Chief Magistrate's Court, Malindi suit over Plot No. 946 Mwele Simakeli Demarcation Section). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3173/eng@2022-06-08

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