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ELCPartially AllowedEnvironment & Land Petition E001 of 2022· [2023] KEELC 21195 (KLR)

Edward Mureka v Kenya Rural Roads Authority & 3 others

Environment and Land Court of Kenya
18 October 2023
ECE.C Cherono
2,926 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court ruled that KERRA must pay a Bungoma landowner Kshs 2.5 million for flooding his property with a badly designed road culvert.

What this practically means

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Executive summary

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The petitioner, registered owner of land in Bungoma (E. Bukusu/S. Kanduyi), petitioned the Environment and Land Court alleging that the Kenya Rural Roads Authority and the Resident Engineer, while upgrading the Musikoma-Buyofu-Mungatsi-Myanga-Mateka road, unlawfully entered his land and erected a cross culvert that channelled storm water into his homestead and farm, flooding them. He sought declarations of ownership and unconstitutionality, a permanent injunction, general damages for trespass, compensation for unlawful compulsory acquisition, and mandamus to compel compensation or reinstatement. The respondents denied trespass, asserting the works were lawful, publicised, and involved replacement of an existing culvert at a sag, and that no acquisition had occurred. The court framed three issues: constitutional threshold, proof of violation, and reliefs. It held the petition met the Anarita Karimi Njeru threshold, and that the respondents, knowing the topography and replacing a functioning culvert without expert assessment or consultation, directly diverted storm water onto the petitioner's land and failed to take remedial measures despite correspondence since 2017 - conduct that was unfair, unlawful and unconstitutional, attracting liability on Rylands v Fletcher principles. However, the compulsory acquisition claim failed for want of proof that the culvert sat on the petitioner's land, and restitution was refused as the road serves the public; instead the respondents were to redesign and re-do the culvert within three months. The court awarded general damages of Kshs.2,500,000/= for trespass and costs to the petitioner, borne by the 1st respondent.

Key legal issues

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01

Whether the petition met the constitutional threshold under Anarita Karimi Njeru

Holding

The petition complied with the 2013 Practice and Procedure Rules and was properly before the court

Reasoning

The court applied the Anarita Karimi Njeru precision standard as codified in the Mutunga Rules. The petitioner had set out the parties, legal foundation, facts relied upon, injury caused, grounds of violation and reliefs sought, satisfying the pleading threshold for constitutional petitions.

p. 4
02

Whether the erection of the culvert and diversion of storm water violated the Petitioner's rights under Articles 40 and 47

Holding

Yes - the 1st and 2nd Respondents acted without precaution, expert report or consultation, and failed to take remedial measures, rendering their actions unfair, unlawful and unconstitutional

Reasoning

The court found the Respondents knew the topography and foreseeability of flooding when replacing a working culvert at a sag, yet undertook the works without expert assessment or consultation. Correspondence showed the problem since 2017 with no rectification, so the diversion was a human intervention, not natural drainage, attracting liability on Rylands v Fletcher principles.

p. 5
03

Whether there was compulsory acquisition of the Petitioner's land

Holding

No - the claim for compensation for compulsory acquisition failed for lack of proof

Reasoning

Neither party demonstrated that the replaced culvert was placed within the Petitioner's property; the Petitioner said it was outside his gate and did not specify what portion of land was taken by the road expansion. The acquisition claim therefore failed.

p. 5
04

Quantum of general damages for trespass

Holding

General damages of Kshs.2,500,000/= awarded as a discretionary remedy

Reasoning

Relying on Gitobu Imanyara v Attorney General on the discretionary and remedial nature of constitutional damages, the court awarded Kshs.2,500,000/= as general damages for trespass, far below the Kshs.50,000,000/= sought, without detailed reasoning on quantum.

p. 5

Legal principles established

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  • The burden of proof in a constitutional petition rests on the petitioner, who must present clear, credible, admissible, cumulative and corroborative evidence of the violation
  • A constitutional petition must comply with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, setting out capacity, facts, rights violated, injury and reliefs sought
  • A public body undertaking road works that diverts storm water onto private land, without expert assessment or remedial action, is liable in trespass notwithstanding claims of natural drainage

Court orders

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  1. 1.A declaration that the Petitioner is the lawful proprietor of all that parcel of land known as L.R E. Bukusu/S. Kanduyi/21287
  2. 2.A declaration that the Respondent's actions in seeking to curtail, undermine and/or deprive the Petitioner of their rights to their properties known as L.R E. Bukusu/S. Kanduyi/21287 and the developments therein, without just cause and prompt and adequate compensation is unfair, unlawful and unconstitutional
  3. 3.General damages for trespass in the sum of Kshs.2,500,000/=
  4. 4.Costs to the Petitioner to be borne by the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 19, 20, 21, 22, 22(3), 23, 27(1)(2), 35, 35(1)(a) & (3), 40, 47, 47(1), 50(1), 159, 165(3)(b), 258
  • Fair Administrative Action ActSection 4
  • Land Acquisition Act Cap 295Sections 3, 5, 6, 6A, 7, 8, 9, 10, 12, 13, 17, 18, 25, 26
  • Land Act No. 6 of 2012Sections 107, 108, 111, 112, 113, 114, 115; Part VIII
  • Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules 2013

Cases cited (14)

  • Mumo Matemu v Trusted Society of Human Rights Alliance
    (2013) eKLR

    precision in pleading constitutional violations

  • Anarita Karimi Njeru v Republic
    (1979) KLR 154

    precision standard for alleging constitutional violations

  • Stanley Munga Githunguri v Republic
    (1985) eKLR

    informed promulgation of the Mutunga Rules

  • Nightshade Properties Ltd v National Land Commission & 3 others
    (2021) eKLR

    requirements for lawful compulsory acquisition of land

  • Patrick Musimba v National Land Commission & 4 others
    (2016) eKLR

    compulsory acquisition requirements, quoted in Nightshade

  • Attorney General v Zinj Limited
    (Petition 1 of 2020) (2021) KESC 23 (KLR) (3 December 2021)

    compensation for unlawful acquisition of land

  • James Shikwati Shikuku v County Government Kakamega & 3 others
  • Belgo Holding Limited v Kenya Urban Roads Authority & Another
    (2020) eKLR

    special damages for property damage by road authority

  • Mike Maina Kamau v Attorney General
    (2017) eKLR

    general and exemplary damages against the State

  • Leonard Otieno v Airtel (K) Ltd
    (2015) eKLR

    burden of proof and quality of evidence in constitutional petitions

  • Multiple Hauliers East Africa Limited v Attorney General & Others
    [2013] eKLR, Petition No. 88 of 2010

    Article 47 - administrative action must follow due process and natural justice

  • Jane Wagathuitu Githinji & 2 others v Sokanmi Soja Springfields Ltd & 2 others
    (2019) eKLR

    liability where human activity rather than natural drainage causes water damage

  • Rylands v Fletcher
    (1861-73) ALL ER 1

    strict liability for escape of water caused by human intervention

  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR

    discretionary nature of general damages under the Constitution

Jurisdiction invoked
Article 165(3)(b) of the Constitution of Kenya, 2010 (enforcement of fundamental rights and freedoms)

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, "Edward Mureka v Kenya Rural Roads Authority & 3 others", Case Analysis (2023). Environment & Land Petition E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21195/eng@2023-10-18

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