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ELCDismissedPetition dated 25/1/2022

Guyo v Kenya Electricity Generating Company PLC (KENGEN); National Assembly (Interested Party) (Environment & Land Petition 4 of 2022) [2025] KEELC 3 (KLR)

Environment and Land Court
15 January 2025
11,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Malindi dismissed a Kshs. 2.3 billion flood compensation claim against a state power company, finding the 2018 Tana River flooding was an act of God.

What this practically means

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Executive summary

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The Petitioner, the Member of Parliament for Garsen Constituency, sued in public interest on behalf of residents of Galole, Garsen, Balambala, Bura, Garissa Township and Fafi Constituencies, alleging that in April 2018 the Respondent, a state power-generation parastatal, deliberately released excess water from its dams on the Tana River without notice, causing massive flooding, loss of livestock, displacement, destruction of property and disease. He sought declarations of breach of Articles 40, 42, 43 and 46, compensation totalling Kshs. 2.3 billion, and an order compelling implementation of the National Assembly Departmental Committee on Energy's recommendations. The Respondent denied negligence, attributing the floods to unprecedented rainfall (an act of God) and unregulated rivers downstream of the dams, and raised a limitation objection. The Interested Party (the National Assembly) confirmed its committee's 2018 report and subsequent implementation meetings. The court framed four issues. On limitation, it held the petition was a constitutional tort to which the Limitation of Actions Act did not apply absent inordinate delay. On liability, it distinguished Rylands v Fletcher, finding the spillage through designed spillways was neither a non-natural use nor an escape, that the dam cascade mitigates flooding, and that abnormal rainfall made the flooding an Act of God. The court found the notice given to County Commissioners and county governments sufficient, the Respondent having no statutory flood-control mandate. Finding no negligence, malice or rights violation, and no entitlement to compensation, the court dismissed the petition with no order as to costs. It added extensive observations on climate change governance, county climate change legislation and climate finance.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition is statute barred
  2. 2.Whether the flooding that occurred on 24/4/2018 was as a result of the Respondent's negligence
  3. 3.Whether the Respondent violated the Petitioner's rights guaranteed under Articles 40, 42, 43 (1), and 46 (1) of the Constitution of Kenya
  4. 4.Whether the Petitioner is entitled to an award of compensation as prayed

Key legal issues

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01

Whether the petition, filed over three years after the flooding, was statute barred under section 4(2) of the Limitation of Actions Act

Holding

The objection failed; the petition was a constitutional tort for which limitation should not apply absent inordinate delay, and the one-year excess delay was not inordinate

Reasoning

The court examined the doctrine of constitutional avoidance and limitation of actions. Although the facts pleaded disclosed elements of tort, the claim was properly characterised as a constitutional tort seeking redress for rights violations by a state agency. Limitation does not bar such claims unless the delay would obstruct a just determination. The petitioner filed one year beyond the three-year tort period, which the court held was not inordinate delay.

p. 10
02

Whether the Respondent was negligent or malicious in releasing excess water from the Seven Forks dams

Holding

No negligence or malice was proved; the spillage was automatic through designed spillways and the flooding was caused by abnormal rainfall (an Act of God) and unregulated rivers downstream of the dams

Reasoning

Applying Rylands v Fletcher, the court found the respondent never imported water onto its land but merely exploited the river's hydroelectric potential in situ, so there was no non-natural use or 'escape'. The dams mitigate rather than worsen flooding. Newspaper exhibits showed the affected areas were already flooded before the alleged release, and the meteorological warning of above-normal rainfall made the floods an act of God. The claim of poor dam maintenance was unsupported by evidence.

p. 13
03

Whether the Respondent breached Articles 40, 42, 43(1) and 46(1) by giving late or inadequate notice of the spillage

Holding

Notice to County Commissioners and county governments sufficed; the respondent has no corporate or statutory mandate for flood control and the Meteorological Department warning already put all on notice

Reasoning

The respondent's memorandum of association confines it to power generation; flood control is not its mandate. The Meteorological Department had warned of above-normal rainfall from 27/3/2018, and the affected areas were already flooded by unregulated rivers when the notice was given. The County Commissioners and county governments had the ground network and responsibility for disaster response. The petitioner failed to distinguish flooding caused by the dams from that caused by unregulated rivers.

p. 14
04

Whether the Petitioner was entitled to compensation of Kshs. 2.3 billion for the affected residents

Holding

No compensation was awarded; liability was not established and the sums claimed were special damages neither proved nor attributable to the Respondent

Reasoning

The damages sought (Kshs. 2.3 billion across six constituencies) were special in nature requiring strict proof, and the respondent contended, without rebuttal on the point, that no precise monetary quantification or particulars of the affected persons had been laid out. More fundamentally, since negligence and rights violations had not been proved, there was no liability basis for compensation. Losses from natural flooding fall within the responsibility of national and county governments.

p. 15

Legal principles established

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  • A constitutional tort claim is not subject to the Limitation of Actions Act unless the delay is so inordinate that justice cannot be done between the parties
  • Spillage of excess water through a designed spillway back into a river's natural course is not an 'escape' or non-natural use of land under the rule in Rylands v Fletcher
  • Flooding caused by abnormal rainfall constitutes an act of God excusing liability
  • Recommendations made by the National Assembly upon hearing a petition are persuasive but not binding on other entities

Court orders

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  1. 1.The petition dated 25/1/2022 is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22(1), 23(3) and 165(3)(b) of the Constitution of Kenya, 2010

Relief refused

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Declarations of breach of Articles 40, 42, 43 and 46 of the Constitution

The court found no negligence or malice by the Respondent and hence no violation of constitutional rights

p. 15

Compensation of Kshs. 2.3 billion for residents of six constituencies

Flooding was an Act of God; the special damages claimed were neither attributable to the Respondent nor pleaded and proved against it

p. 15

Order compelling the Respondent to implement the National Assembly Departmental Committee on Energy recommendations

The recommendations were not binding and the court had to independently determine whether rights were violated; since no violation was proved, no such order issued

Costs

No order as to costs (petition dismissed with no order as to costs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end it is clear that entire petition arises from a constitutional tort with regard to which no limitation should apply unless the delay in lodging the claim is so inordinate that it would not be possible to do justice in the case between the parties.
p. 10Limitation and constitutional torts
By avoiding to store excess water and thus allowing the excess water for which the dam had no storage room to flow back into the river course, the respondent can not be said to have been effecting a non-natural use of the land
p. 12Rylands v Fletcher - non-natural use
the evidence of abnormal rainfall which occurred during the months of March and April 2018 in both the upper and downstream catchment areas of the Tana River basin means that the resultant floods and the damage occasioned can only be termed as an Act of God.
p. 12Act of God defence
the flooding that occurred on 24/4/2018 and its effects were not as a result of the respondent's negligence or malice and thus the petition dated 25/1/2022 lacks merit and it is hereby dismissed with no order as to costs.
Final orders - dismissal
recommendations made by the National Assembly however weighty and persuasive, were not binding.
p. 7Effect of parliamentary petition recommendations
Upon perusal of the respondent's Memorandum of association, it is apparent that flood control is not part of its mandate.
p. 13Corporate mandate and flood control

Issues in the judgment

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minor

The judgment gives two different dates for the filing of the petition: the opening paragraph says the petition is dated 25/1/2022 while the limitation analysis says it was filed on 26/1/2022

minor

The number of dams in the Seven Forks cascade is inconsistently described: the Respondent's deponent refers to five dams while the judgment elsewhere refers to the 'Seven Forks dams'

minor

The figure for water stored in the dams is written in words inconsistently with the numerals ('2,237,000,000,000' rendered as 'two trillion, three hundred and twenty-seven billion')

minor

The case number of the petition is not stated anywhere in the judgment; only the filing date of 25/1/2022 appears

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "Guyo v Kenya Electricity Generating Company PLC (KENGEN); National Assembly (Interested Party) (Environment & Land Petition 4 of 2022) [2025] KEELC 3 (KLR)", Case Analysis (2025). Petition dated 25/1/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3/eng@2025-01-15

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