Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNairobi HCCC No. 103 of 2005· [2024] KEELC 5551 (KLR)

Ahmed & another v Kenya Electricity Generating Company Limited & another (Environment & Land Case 10 of 2017) [2024] KEELC 5551 (KLR)

Environment and Land Court
25 July 2024
JMJ. M. Mutungi
8,167 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ordered Kengen to pay Tana River farmers KShs 10 million and stop oil spillage from its Garissa power plant within six months.

What this practically means

#

Executive summary

#
The Plaintiffs, farmers owning the Likoley farm along the Tana River in Garissa, sued Kenya Electricity Generating Company (1st Defendant) and Kenya Power and Lighting Company (2nd Defendant) over continuous oil spillage from the Garissa power plant from 1995 onwards, claiming general damages, special damages of Kshs 865,500,661 and an injunction. The 2nd Defendant denied ownership of the plant, alleging erroneous joinder and limitation; the 1st Defendant denied the spillage and pleaded contributory negligence and act of God. The court framed three issues: misjoinder of the 2nd Defendant, occurrence of spillage and liability, and entitlement to relief. It found that although clause 9.2 of the 2000 asset transfer agreement placed pre-separation liability on the 2nd Defendant, the tort claim against it, filed in August 2005, was statute barred under section 4(2) of the Limitation of Actions Act and was dismissed. Official reports from the District Environment Officer, District Agricultural Officer, NEMA and the Government Chemist established repeated oil spillages during rainy seasons affecting the Plaintiffs' farm. The court held the 1st Defendant negligent for failing to maintain an effective waste fuel disposal system, allowing oil to be washed onto neighbouring farms and into the Tana River, constituting negligence and nuisance. Special damages were disallowed as PW2's expert evidence was speculative and special damages require strict proof. General damages of Kshs 10,000,000 were awarded with interest, and the 1st Defendant was ordered, within six months and under supervision of the County Director of Environment Garissa, to implement mitigation and restorative measures to stop spillage. Costs were awarded against the 1st Defendant.

Key legal issues

#
01

Misjoinder of the 2nd Defendant

Holding

Although clause 9.2 of the transfer agreement would in principle sustain the claim against the 2nd Defendant, the suit against it was time barred

Reasoning

The complaints related to acts before the 2000 separation agreement, so clause 9.2 allocated responsibility to the 2nd Defendant. However, the tort claim in respect of those pre-2000 acts had to be filed within three years of accrual under section 4(2) of the Limitation of Actions Act. The suit, filed in August 2005, was out of time and unsustainable against the 2nd Defendant.

02

Oil spillage and negligence of the 1st Defendant

Holding

Proved on a balance of probabilities; repeated oil spillages from the Kengen station during rainy seasons affected the Plaintiffs' farm and the 1st Defendant failed to take adequate precaution

Reasoning

Official reports by the District Environment Officer, District Agricultural Officer, Government Chemist and NEMA correspondences from 1997 to 2010 documented oil spillage reaching the Plaintiffs' farm. The 1st Defendant had no effective waste fuel disposal mechanism, allowing waste oil to be washed onto neighbouring farms and into the Tana River, constituting negligence and nuisance.

p. 12
03

Entitlement to damages

Holding

General damages of Kshs 10,000,000 awarded; special damages of Kshs 865,500,661 disallowed for want of strict proof

Reasoning

PW2's expert opinion lacked a substratum of proved facts - no records of commercial farming inputs, yields or sales. Special damages require strict proof. For general damages, the court considered the farm size, that only parts were affected, and the absence of proved income, settling on Kshs 10,000,000 as reasonable compensation.

p. 14

Legal principles established

#
  • Special damages must be specifically pleaded and strictly proved
  • The rule in Rylands v Fletcher requires a non-natural use of land, escape of a thing likely to do mischief, and resulting damage to the plaintiff's property
  • An entity that assumed liabilities under a transfer-of-assets agreement remains answerable for pre-transfer acts per clause 9.2 of the agreement

Court orders

#
  1. 1.Judgment entered in favour of the Plaintiffs against the 1st Defendant with general damages of Kshs 10,000,000/- plus interest at court rates from the date of judgment until payment in full
  2. 2.The 1st Defendant, under the supervision of the County Director of Environment Garissa, ordered within six months to put in place mitigation and restorative measures including a waste fuel disposal system to stop any oil spillage onto neighbouring farms or into the Tana River
  3. 3.The County Director of Environment Garissa to file a status report on implementation on or before 31st March 2025
  4. 4.Judgment to be served upon the Director General NEMA and the County Director of Environment Garissa
  5. 5.Plaintiffs awarded the costs of the suit as against the 1st Defendant
  6. 6.Suit against the 2nd Defendant dismissed as statute barred

Authorities

#

Legislation

  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 4(2)
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 69(2)

Cases cited (15)

  • Rylands v Fletcher
    [1868] LR 3 HL 330
  • David M. Ndetei v Orbit Chemical Industries Limited
    [2014] eKLR
  • Kibos Distillers Limited & 4 others v Benson Ambuti & 3 others
    [2020] eKLR
  • Kagina v Kagina & 2 others
    [2021] eKLR
  • Stephen Kanini Wang'ondu v The Ark Limited
    [2016] eKLR
  • Kenya Ports Authority Limited v East African Power & Lighting Company
    [1982] eKLR
  • Eric Omuodo Ounga v Kenya Commercial Bank Limited
    [2017] eKLR
  • Lomolo [1962] Limited v Juma Oduor
    [2019] eKLR
  • Paul Gakunu Mwinga v Nakuru Industries Ltd
    [2009] eKLR
  • Mwita Merengo v Joseph Tunei Marwa & 2 Others
    [2012] eKLR
  • Transco plc v Stockport Metropolitan Borough Council
    [2004] 2 ACI
  • Rickards v Lothian
    [1913] AC 263
  • Hahn v Singh
    (1985) KLR 716
  • Park Towers v Moses Chege & 7 others
    (2014) eKLR
  • Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd
    [1992] KLR 177
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court in a claim founded in negligence, nuisance and strict liability (Rylands v Fletcher)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Ahmed & another v Kenya Electricity Generating Company Limited & another (Environment & Land Case 10 of 2017) [2024] KEELC 5551 (KLR)", Case Analysis (2024). Nairobi HCCC No. 103 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5551/eng@2024-07-25

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