Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition dated September 23, 2019· [2022] KEELC 3295 (KLR)

Rotich v Jingxi Zhongmei Engineering Construction Co. Ltd & another (Environment & Land Petition 5 of 2019) [2022] KEELC 3295 (KLR)

Environment and Land Court
2 June 2022
5,231 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

A Kericho landowner lost her claim against a road contractor because she couldn't prove ownership, that the house existed in 2012, or that blasting damaged it.

What this practically means

#

Executive summary

#
The Petitioner, claiming to be the registered proprietor of parcel No Block 9/173 (Jagoror) 244, petitioned the Environment and Land Court at Kericho alleging that the 1st Respondent, while rehabilitating the Londiani-Fortenan Road C-35 from December 4, 2012, used explosives about 200 metres from her house, causing severe structural cracks to the walls, floors, foundation, underground water tank and pit latrine, rendering it uninhabitable. She sought demolition and reconstruction costs (quantified at Ksh 2,900,000 per a 2014 Bill of Quantities), general damages and costs, alleging violation of her rights to property (Article 40) and a clean and healthy environment (Article 42), with the 2nd Respondent joined as the state's representative. The 2nd Respondent's preliminary objection and the 1st Respondent's grounds of opposition were dismissed on October 7, 2021 as raising factual issues. Only the 1st Respondent filed submissions, contending the house did not exist in 2012 (the Bill of Quantities being for a proposed April 2014 construction), assessments came two and six years after the alleged damage, no title or photographic proof of ownership or damage was produced, and the seven-year delay indicated a manufactured, fraudulent claim. The court, per M C Oundo J, applied Anarita Katimi Njeru on precision in pleading constitutional violations and Sections 107-109 of the Evidence Act on burden of proof. It found no proof of ownership, no credible evidence the house existed in 2012 or was damaged, no EIA report, and that the environmental complaint should first have gone to NEMA's Public Complaints Committee. The Petition was dismissed with costs.

Key legal issues

#
01

Proof of violation of property rights under Article 40

Holding

No arbitrary deprivation of property was proved; the Petitioner failed to adduce evidence of title or of the state denying her ownership.

Reasoning

The court noted the Petitioner claimed to be the registered proprietor but attached no registrable document or title under Section 26 of the Land Registration Act. There was also no photographic evidence confirming the house existed and was damaged. The Bill of Quantities dated April 2014 for a proposed residential development, lacking a demolition cost item, suggested the house did not exist in 2012 when the alleged damage occurred.

p. 8
02

Proof of violation of the right to a clean and healthy environment under Article 42

Holding

The Petitioner ought first to have tabled her complaint before NEMA through its Public Complaints Committee; no Environmental Impact Assessment report was annexed to support her claim.

Reasoning

Sections 31, 32 and 33 of EMCA establish a Public Complaints Committee to investigate environmental complaints. Although the courts remain open to persons alleging breach of environmental law, the Petitioner did not exhaust that machinery, nor did she produce any EIA report supporting the allegation that her environmental right had been violated by the blasting.

p. 7
03

Whether the constitutional petition was the proper forum for what is essentially a damages claim

Holding

Statutory breaches and ordinary damages claims belong in ordinary suits; constitutional petitions are reserved for actual infringement of rights.

Reasoning

Relying on Godfrey Paul Okutoyi and Bernard Murage, the court observed that the claim, at its core, was a claim in nuisance/damages for property damage. Breach of a statute should be redressed through the statutory remedy or an ordinary suit. Not every failure to comply with a law should be escalated into a constitutional petition.

p. 9
04

Effect of inordinate and unexplained delay

Holding

The 7-year delay between the alleged damage (2012) and filing (2019) undermined the credibility of the claim and the availability of evidence.

Reasoning

Following Wellington Nzioka Kioko v Attorney General, the court held that although there is no limitation period for constitutional petitions, inordinate delay requires a plausible explanation. Here the assessments were done two and six years after the alleged damage, allowing for intervening activities and normal wear and tear, and the delay suggested possible manufacture of documents to extort money.

p. 9

Legal principles established

#
  • A party alleging constitutional violation must set out with precision the provisions infringed and the manner of infringement, and prove it on a balance of probabilities.
  • He who alleges must prove; failure to discharge the burden of proof is fatal to a petition.
  • Not every breach of a statute gives rise to a constitutional petition; where an alternative statutory remedy exists it should be pursued first.
  • Delay in filing a constitutional petition must not be inordinate and must be explained.

Court orders

#
  1. 1.The Petition dated September 23, 2019 is dismissed with costs to the Respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 69(1)(g), 69(2)
  • Environment and Land Court ActSection 13(7)
  • Land Registration ActSection 26
  • Environmental Management and Co-ordination ActSections 31, 32, 33
  • Evidence ActSections 107, 108, 109
  • Mutunga RulesRule 4(a)

Cases cited (7)

  • Anarita Katimi Njeru vs The Republic
    (196-1980) KLR 1272
  • R vs Chief Immigration Officer
    (1976) 3 AER 843
  • Wreck Motors Enterprises v The Commissioner of Lands and Others
    [1997] eKLR
  • Livingstone vs Rawyards Coal Co
    (1880) 5 App Cases 25
  • Wellington Nzioka Kioko v Attorney General
    [2018] eKLR
  • Godfrey Paul Okutoyi & others vs Habil Olaka & Another
    (2018) eKLR
  • Bernard Murage vs Fine Serve Africa Ltd & others
    (2015) eKLR
Jurisdiction invoked
Articles 22, 23, 40 and 42 of the Constitution; section 13(7) of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rotich v Jingxi Zhongmei Engineering Construction Co. Ltd & another (Environment & Land Petition 5 of 2019) [2022] KEELC 3295 (KLR)", Case Analysis (2022). Petition dated September 23, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3295/eng@2022-06-02

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