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ELCDismissedNot stated in judgment

Little Bees Kindergarten and Primary v Kenya National Highways Authority & 2 others (Environment & Land Case E08 of 2024) [2025] KEELC 3482 (KLR)

Environment and Land Court
29 April 2025
2,691 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Machakos (Matheka J) resolves three preliminary objections raised against the Plaintiff's claim for Kshs. 117,114,503 arising from alleged negligence causing a blockage and/or leakage in a main sewer line and flooding. The 1st Defendant objected that the suit is statute-barred under Section 67(b) of the Kenya Roads Act, which requires proceedings against an Authority within twelve months of the act complained of, or six months after cessation of a continuing injury. The 2nd and 3rd Defendants objected that the ELC lacks jurisdiction, contending the claim is an ordinary tort claim for the High Court, and that the suit against the 3rd Defendant, an agent of a disclosed principal, is incurably defective. The court applied the Mukisa Biscuit test and held that all three objections were proper preliminary objections but failed on the merits. On jurisdiction, the court held that the dominant issue is the use and occupation of land, engaging Article 162(2)(b) of the Constitution and Section 13(2) of the ELC Act, with Article 260's expansive definition of land supporting this conclusion. On joinder, Order 1 Rule 9 provides misjoinder cannot defeat a suit, and an agent may be personally liable in tort. On limitation, when the continuing injury ceased is a matter of evidence for trial. All preliminary objections were dismissed with costs to the Plaintiff.

Questions the Court framed

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

  1. 1.Whether the defendants' preliminary objections satisfy the threshold for a preliminary objection
  2. 2.Whether the ELC has jurisdiction over a claim for damages based on negligence causing sewer blockage and flooding
  3. 3.Whether the suit is defectively constituted for suing an agent of a disclosed principal (misjoinder)
  4. 4.Whether the suit is statute-barred under Section 67(b) of the Kenya Roads Act

Key legal issues

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01

Jurisdiction of the ELC over negligence claims causing flooding/sewer damage

Holding

The court has jurisdiction because the dominant issue is the use and occupation of land; Article 260's expansive definition of land encompasses the damage complained of.

Reasoning

Article 162(2)(b) confers jurisdiction over disputes relating to the environment and the use and occupation of, and title to, land. Article 260 defines 'land' to include the surface, subsurface, water on or under the surface and airspace, espousing the cuius doctrine. The alleged negligent blockage of a main sewer line causing flooding directly relates to the Plaintiff's use of their land, engaging Section 13(2) of the ELC Act, so the High Court is ousted under Article 165(5)(b).

p. 3
02

Whether suing an agent of a disclosed principal is incurably defective

Holding

No; misjoinder cannot defeat a suit and an agent may be personally liable in tort for wrongful acts in the course of employment.

Reasoning

Order 1 Rule 9 of the Civil Procedure Rules, 2020 provides that no suit shall be defeated by misjoinder or non-joinder of parties. Halsbury's Laws and the decision in Williams v Natural Life Health Foods establish that an agent committing a wrongful act may be personally liable in tort. Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities. The 2nd and 3rd Defendants may be sued jointly and severally.

03

Limitation under Section 67(b) of the Kenya Roads Act

Holding

The objection fails because when the continuing injury ceased is unclear and is a matter for evidence at the hearing.

Reasoning

Limitation goes to jurisdiction, but the 1st Defendant's assertion that the continuous injury ceased on 20th April 2022 is disputed; the Plaintiff contends the damage continued at filing and the Defendants visited the site in 2023. The court cannot conclude on the pleadings that the claim is time-barred; cessation of the injury must be established by evidence.

Legal principles established

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  • A claim that negligence caused blockage of a main sewer line and flooding relates to the use and occupation of land and falls within the jurisdiction of the ELC.
  • Misjoinder or non-joinder of parties cannot defeat a suit under Order 1 Rule 9 of the Civil Procedure Rules.
  • An agent who commits a wrongful act in the course of employment may be personally liable in tort notwithstanding the disclosed principal.
  • Where it is not clear when a continuing injury ceased, whether a suit is time-barred is a matter of evidence and cannot be resolved at the preliminary stage.

Court orders

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  1. 1.All the preliminary objections are dismissed
  2. 2.Costs of the preliminary objections to the Plaintiff

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution read with Section 13(2) of the Environment and Land Court Act

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 conclusion then I find that all the preliminary objections lack merit and I dismiss them with costs to the Plaintiff.
p. 6Final orders - dismissal of preliminary objections
I find from the discussion above, that this court has jurisdiction to entertain the matter as it concerns occupation and use of land which I find is the dominant issue in the instant case.
p. 3ELC jurisdiction over land-use negligence claims
This definition espouses the doctrine of Cujus est solum, eius est usque ad coelum et ad inferos (cujus doctrine) which translates to "whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell".
p. 3Article 260 definition of land and the cuius doctrine
It follows therefore that an agent may be personally liable for tortious acts committed in the course of its employment.
p. 5Personal tortious liability of an agent of a disclosed principal
I find that it is not clear when the alleged injury ceased and this is a matter of evidence to be adduced at the hearing and the court cannot therefore conclude that this matter is time barred at this stage.
p. 6Limitation objection premature where cessation of continuing injury is disputed

Issues in the judgment

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minor

The judgment does not name the parties, case number, or plaintiff's claim in full; the extract begins directly with the preliminary objections and the party names are unknown.

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, "Little Bees Kindergarten and Primary v Kenya National Highways Authority & 2 others (Environment & Land Case E08 of 2024) [2025] KEELC 3482 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3482/eng@2025-04-29

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