Muthoni & 8 others v Jane & 5 others (Environment and Land Appeal E060 of 2025) [2026] KEELC 4957 (KLR)
The bottom line
#The Environment and Land Court in Machakos dismissed homeowners' appeal because they had no expert evidence linking quarry blasting to cracks in their houses.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants proved causation of damage to their houses from the respondents' quarrying and blasting
No; the undated photographs and quotation did not establish the nexus, extent or cause of the damage on a balance of probabilities
The court found the only evidence of damage was undated photographs of cracks and an unclear undated quotation from Aquila Tai Construction. No expert evidence linked blasting to the cracks, and the extent and magnitude of damage could not be ascertained, so it was not clear that the respondents' activities caused it. Section 109 of the Evidence Act places the burden of proving the particular fact on the person asserting it.
Whether the trial magistrate erred in imposing an evidentiary burden requiring expert testimony
The magistrate did not err; the burden under Sections 107-109 of the Evidence Act lay on the plaintiffs, and where an expert witness is necessary the party must call one
Relying on Jennifer Nyambura Kamau v Humphrey Mbaka Nandi and James Muigai Thungu, the court reiterated that he who asserts must prove, and that if an expert witness is necessary the evidential burden lies on that party to call the expert. The burden lies on the person who would fail if no evidence at all were given. The appellants, who alleged nuisance and strict liability, bore and failed to discharge that burden.
Whether the alleged lack of NEMA and blasting approvals established the appellants' case
The alleged statutory breaches did not relieve the appellants of proving the damage and its causation
Although the appellants contended that the respondents lacked an EIA licence under Section 58 of EMCA and blasting permits under the Explosives Act, and that the magistrate failed to draw inferences from this, the court found that the case of strict liability under Rylands v Fletcher still had to be proved with evidence of damage and nexus, which the appellants did not produce.
Whether the appeal and the interlocutory injunction application were merited
Neither was merited; both dismissed with costs
Applying Mbogo v Shah, the court would not interfere with the magistrate's exercise of discretion absent misdirection or wrong conclusion. Finding no error in the magistrate's holding that the plaintiffs failed to prove their case on a balance of probabilities, the court dismissed both the appeal and the application under Order 40 with costs to the respondents.
Legal principles established
#- On a first appeal the court must re-evaluate, re-assess and re-analyse the evidence and decide whether the conclusion reached by the trial court was sound
- Strict liability under Rylands v Fletcher must be proved by evidence; undated photographs and quotations without expert evidence cannot establish causation
Court orders
#- 1.The appeal is dismissed
- 2.The application is dismissed
- 3.Costs of the appeal and the application are awarded to the Respondents
- On appeal from
- Magistrate's Court at Kangundo
- MCELC Cause No. 30 of 2019
- Jurisdiction invoked
- Sections 13 and 19 of the Environment and Land Court Act (first appeal from the Magistrate's Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthoni & 8 others v Jane & 5 others (Environment and Land Appeal E060 of 2025) [2026] KEELC 4957 (KLR)", Case Analysis (2026). ELC Appeal No. E060 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4957/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.