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ELCPartially AllowedEnvironment and Land Court Appeal (Naivasha) – arising from Naivasha Chief Magistrate's Environment and Land Court Case Number 10 of 2020· [2025] KEELC 1060 (KLR)

Winds of Change Limited v Kenya Rural Roads Authority & another (Environment and Land Appeal E006 of 2024) (Environment and Land) [2025] KEELC 1060 (KLR)

Environment and Land Court of Kenya
6 March 2025
11,269 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~45 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won KSh 1 million for flooding nuisance from a road culvert, but could not force its removal because the public interest in keeping the road open prevailed.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Naivasha (M.C. Oundo, J) against the judgment of Hon. Y.M. Barasa, Principal Magistrate, delivered on 7th September 2023 in Naivasha CMCELC No. 10 of 2020. The trial court had awarded the Appellant, Savanna Farm Limited, Kshs. 200,000/= as general damages for nuisance caused by a culvert on Moi South Lake Road, dismissed the claim against the 2nd Respondent (the contractor) and the injunctive prayers, and ordered each party to bear its own costs. The Appellant appealed, seeking mandatory and permanent injunctions, enhanced damages of Kshs. 1,000,000/=, costs, and reversal of the dismissal against the 2nd Respondent. The High Court, exercising first appellate jurisdiction as a court of fact and law, framed seven issues. It held, on the evidence and the site visit, that a culvert existed prior to the road rehabilitation and was merely enlarged from 600mm to 900mm within the public road reserve; that the culvert caused a nuisance by obstructing access and discharging water onto the Appellant's premises; but that the trial magistrate did not err in refusing the injunctions since removal would cause more damage than good to the greater public; that no trespass was proved; that the 2nd Respondent, as agent of a disclosed principal, was properly not liable; but that the damages were inordinately low, and the denial of costs was erroneous. The appeal was allowed in part: the claim against the 2nd Respondent remains dismissed, judgment was entered against the 1st Respondent for Kshs. 1,000,000/= in general damages, and the Appellant was awarded half costs of both the suit and the appeal.

Key legal issues

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01

Existence of the culvert prior to road rehabilitation

Holding

There existed a culvert prior to the rehabilitation, which was enlarged from 600mm to 900mm diameter

Reasoning

The court found the point uncontested on the evidence of PW2 (an old culvert before the chain-link), DW1 (who instructed the contractor to replace the culvert where it had been) and DW2 (who confirmed a culvert needing repair). The trial court had also observed the site on 3rd March 2023.

p. 15
02

Nuisance

Holding

The rehabilitated culvert obstructed access to and discharged water onto the Appellant's premises, causing a nuisance

Reasoning

Applying the definition of nuisance as wrongful interference with enjoyment of land, the court noted PW1's admission that the culvert emptied into the overgrown private access road blocking access, the trial court's site visit observations, and the trial magistrate's finding of continued interference with use and occupation of the premises.

p. 16
03

Mandatory/permanent injunction

Holding

The trial magistrate did not err in refusing the injunction; public interest outweighed the private right

Reasoning

The works were a rehabilitation of an existing culvert within the road reserve and had been completed before suit. Guided by authority, the court weighed disproportionality and public interest: removal would flood the road, cut it at that point and cause more damage than good to the greater public.

p. 17
04

Trespass

Holding

No trespass was proved; the culvert was constructed within the public road reserve

Reasoning

The court adopted definitions of trespass from Black's Law Dictionary, the Trespass Act and Clark & Lindsell on Torts. It found the road a public one and the offending cross culvert constructed within the road reserve at the lowest point, so the trespass claim failed.

p. 17
05

Quantum of general damages

Holding

The award of Kshs. 200,000/= was inordinately low; general damages raised to Kshs. 1,000,000/= against the 1st Respondent

Reasoning

The court considered the business premises, hindered access to cottages, the havoc water can cause, inconvenience and discomfort proved, and persuasive comparators (Kshs. 1,500,000/= and Kshs. 2,000,000/= awards), while noting no special damages were pleaded.

p. 18
06

Liability of the 2nd Respondent as agent

Holding

The suit against the 2nd Respondent was properly dismissed as it was an agent of a disclosed principal

Reasoning

It was uncontested that the 1st Respondent contracted the 2nd Respondent to rehabilitate the culvert. Applying the common law principle on disclosed principals and finding no evidence of personal wrongful acts by the agent, the court upheld the dismissal.

p. 18
07

Costs

Holding

The trial court erred in denying costs; the Appellant was awarded half costs of both the suit and the appeal

Reasoning

Section 27 of the Civil Procedure Act provides that costs follow the event. Since the Appellant had partially succeeded against the 1st Respondent at trial and succeeded in part on appeal, the court exercised discretion to award half costs of both proceedings.

p. 19

Legal principles established

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  • A first appellate court must reconsider, re-evaluate and draw its own conclusions from the evidence, being free to reach a different conclusion
  • Where the principal is disclosed, the agent cannot be sued absent proof of personal wrongful acts
  • A court will not grant an injunction where the detriment it would inflict is disproportionate to the benefit or where it would hurt public interest

Court orders

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  1. 1.The claim against the 2nd Respondent still stands dismissed
  2. 2.Judgment entered against the 1st Respondent and the Appellant awarded Ksh. 1,000,000/= (One Million shillings only) as general damages for the nuisance
  3. 3.The Appellant shall have half costs to both the suit at the trial court and this Appeal
On appeal from
Chief Magistrate's Environment and Land Court, Naivasha
Naivasha CMCELC No. 10 of 2020
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (appeal by way of rehearing under section 78 of the Civil Procedure Act)

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, "Winds of Change Limited v Kenya Rural Roads Authority & another (Environment and Land Appeal E006 of 2024)  (Environment and Land) [2025] KEELC 1060 (KLR)", Case Analysis (2025). Environment and Land Court Appeal (Naivasha) – arising from Naivasha Chief Magistrate's Environment and Land Court Case Number 10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1060/eng@2025-03-06

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