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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 4419 (KLR)

Aberdare Investments Limited v Kenya National Highways Authority & 4 others (Environment and Land Case Civil Suit 486 of 2014) [2024] KEELC 4419 (KLR)

Environment and Land Court
30 May 2024
8,910 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, registered proprietor of L.R 209/2389/104 in Pangani, Nairobi, sued five Defendants after flooding of its property's basement in April 2012 and disconnection of its sewer line during construction of the Thika Super Highway. It sought a mandatory injunction to compel reconnection to the main sewer, special damages, general damages and costs. The 1st Defendant (KENHA) contracted the 2nd Defendant (China Wu Yi) to construct the road, while sewer relocation was handled by contractors engaged through the 3rd Defendant (Athi Water) and supervised by the 4th Defendant; the 5th Defendant was the County Government. Five Plaintiff witnesses testified, including an engineer and an auditor, but their evidence was significantly weakened in cross-examination. The court framed three issues: negligence liability, entitlement to reliefs, and costs. It held that the 1st Defendant was negligent, owed a duty of care and breached it, failing to produce its contracts with the independent contractors or join them as parties. The 3rd Defendant failed to adequately supervise sewer relocation. Both were found liable, the court also invoking their duty to safeguard the right to a clean and healthy environment. The claims against the 2nd, 4th and 5th Defendants failed for want of proof of fault. The mandatory injunction was treated as abandoned; special damages were declined as unpleaded and unproved; and general damages of Kshs 2,000,000 were awarded, each of the 1st and 3rd Defendants to pay Kshs 1,000,000, with those Defendants also bearing the Plaintiff's costs. Judgment was delivered virtually on 30th May 2024 by E. K. Wabwoto, Judge.

Key legal issues

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01

Negligence and liability for flooding and sewer disconnection during construction of the Thika Super Highway

Holding

The 1st and 3rd Defendants were liable; the 2nd, 4th and 5th Defendants were not

Reasoning

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.

p. 13
02

Entitlement to special and general damages

Holding

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

Reasoning

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.

p. 15
03

Costs

Holding

Plaintiff entitled to costs against the 1st and 3rd Defendants only

Reasoning

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.

p. 15

Legal principles established

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  • 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

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  1. 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. 2.The Plaintiff's claim against the 2nd, 4th and 5th Defendants dismissed
  3. 3.1st and 3rd Defendants to pay the Plaintiff's costs of the suit

Authorities

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Legislation

  • Kenya Roads ActNot specified
  • Civil Procedure ActSection 27

Cases cited (20)

  • Kenya Wildlife Service vs Rift Valley Agricultural Contractors (2018) eKLR
    (2018) eKLR
  • Donoghue vs Stevenson
    (1932) AC 562
  • Kenya Pipeline Co Ltd vs Duncan Ndegwa and Another
    Civil Appeal No. 235 of 2020
  • Kiambu County Tenants Welfare Association vs Attorney General and Another (2017) eKLR
    (2017) eKLR
  • Board of Governors St. Mary's School vs Boli Festus Andrew Sio (2020) eKLR
    (2020) eKLR
  • Joseph Wathua Kigwe and Another vs Kenya National Highway Authority and 4 Others
    ELC No 930 of 2012
  • Mount Elgon Hardware vs United Millers Ltd (1996) eKLR
    (1996) eKLR
  • Lalji Bhimji Sanghani and Another vs Chemilabs (1978) 3 eKLR
    (1978) 3 eKLR
  • Blyth v Birmingham Water Works Co
    [1856]
  • Capital Fish Kenya Limited v The Kenya Power and Lighting Company Limited [2016] eKLR
    [2016] eKLR
  • Jogoo Kimakia Bus Services Limited v Electrocom International Limited [1992] eKLR
    [1992] eKLR
  • Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd [2013] eKLR
    [2013] eKLR
  • Kampala City Council vs Nakaye
    [1972] EA 446
  • Ouma v Nairobi City Council
    [1976] KLR 297
  • Eldama Ravine Distributors Limited and another v Chebon
    Civil appeal number 22 of 1991 (UR)
  • Ratcliffe v Evans
    [1892] QB 524
  • Coast Bus Service Limited v Murunga & Others
    Nairobi CA No. 192 of 1992 (ur)
  • A.A.M. vs Justus Gisairo Ndarera & Another (2010) eKLR
    (2010) eKLR
  • Kigwe and another vs Kenya National Highways Authority and 4 others
    (Environment and Land case civil suit 930 of 2012)(2023) KEELC 18472 (KLR) (16TH March 2023)
  • Mwangi vs China Road and Bridge Corporation
    (Environment and Land court case E409 OF 2021)(2022) KEECL 15-96 (KLR) 24 November 2022
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

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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, "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.