Aberdare Investments Limited v Kenya National Highways Authority & 4 others (Environment and Land Case Civil Suit 486 of 2014) [2024] KEELC 4419 (KLR)
The bottom line
#A Nairobi court held KeNHA and Athi Water liable for property flooding during Thika Super Highway construction, awarding Kshs 2 million to the affected owner.
What this practically means
#Executive summary
#Key legal issues
#Negligence and liability for flooding and sewer disconnection during construction of the Thika Super Highway
The 1st and 3rd Defendants were liable; the 2nd, 4th and 5th Defendants were not
The court found the 1st Defendant commissioned the project and owed a duty of care to road users including the Plaintiff, and breached it by failing to consider impacts on adjacent properties. The 3rd Defendant was responsible for the sewer lines but failed to adequately supervise relocation. The 1st Defendant did not produce its contracts with contractors nor join them as parties, so could not hide behind the independent contractor doctrine. The 2nd Defendant's mandate did not include sewer relocation; no fault was attributed to the 4th and 5th Defendants.
Entitlement to special and general damages
Special damages declined for want of pleading and strict proof; general damages of Kshs 2,000,000/- awarded, split equally between the 1st and 3rd Defendants
Relying on established Court of Appeal authority, the court held special damages must be specifically pleaded and strictly proved with certainty; the Plaintiff failed on both counts. On general damages, though the Plaintiff submitted no quantum, the court remained obliged to assess adequate compensation, guided by comparable authorities awarding Kshs 500,000 and Kshs 1,000,000, and awarded Kshs 2,000,000 with each liable Defendant paying Kshs 1,000,000.
Costs
Plaintiff entitled to costs against the 1st and 3rd Defendants only
Costs follow the event under Section 27 of the Civil Procedure Act. Since the claim succeeded only against the 1st and 3rd Defendants, only those Defendants bear the Plaintiff's costs; the dismissed claims against the other Defendants carried no costs order against the Plaintiff.
Legal principles established
#- An employer/public authority that commissions a construction project owes a duty of care to adjacent land users and cannot escape liability by blaming independent contractors where it does not produce the contracts or join the contractors as parties
- Special damages must be specifically pleaded and strictly proved
- Public entities have a responsibility to safeguard the right to a clean and healthy environment and liability follows breach of that duty
Court orders
#- 1.General damages awarded to the Plaintiff in the sum of Kshs 2,000,000/-, each of the 1st and 3rd Defendants to pay Kshs 1,000,000/-
- 2.The Plaintiff's claim against the 2nd, 4th and 5th Defendants dismissed
- 3.1st and 3rd Defendants to pay the Plaintiff's costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim relating to land, developments thereon and environmental damage (Article 162(2)(b) of the Constitution, not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aberdare Investments Limited v Kenya National Highways Authority & 4 others (Environment and Land Case Civil Suit 486 of 2014) [2024] KEELC 4419 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4419/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.