Aboki v Nyamira County Government

denied that she destroyed the gum trees as alleged by the Plainti, the Defendant prays that the suit be dismissed with costs. 3. On October 31, 2018, the Plainti amended the Plaint to increase the value of the uprooted trees to Kshs 39 Million and to specically give the width of the constructed road to 45 feet and the length to 360 feet. The Defendant still denied the claims. The nal amendment of the Plaint, the further amended Plaint, was led on March 23, 2022 to include in the prayers Special Damages for loss of 1,601and amended the length of the road to 448 feet. The suit was then set down for hearing. 4. On February 14, 2023, the Plainti took to the witness box and in his examination in chief he testied that the destruction of the trees took place on June 9, 2017 at around 11.00a.m. When the demolishing machines came he tried to resist but all in vain. He was overpowered. He testied that the Defendant destroyed his 1,601 gum trees on the suit land on the 448 feet by 45 feet being part of the suit land. He produced the Government Surveyor’s Report, letter by CA Okenye Advocates dated June 25, 2021 and minutes dated June 29, 2021. Earlier on Bernard Ondari, an extension ocer in Masaba North SubCounty testied. He said the land is located in his area of operation. He testied that he was instructed to go and value the destroyed trees on the suit land by the chief, Miriri location. He testied that there was a road running across the land and that the trees thereon had been buried under the soil on a 150 metres and 15 metres sketch. He counted the trees which totaled 1,601 which were about 2 years old. He assessed the cost of the destroyed trees at Kshs 36,000,000/= and 3.2 Million for the land on which the access road was situate making it a total of Kshs 39,200,000/=. He then produced the Report in court. On cross examination, Mr Ondari said that he was a qualied Agricultural ocer from Bukura Agricultural College with a Diploma in Agriculture obtained in 1996. He admitted that he is not a qualied valuer and that the Report was labelled as a Damage Assessment Report. 5. After the close of the Plainti’s case, Mr Nyagarama for the Defendant placed Mr Lameck Nyariki, the Assistant Director of physical and Land Planning in the County Government of Nyamira who was at the time of testifying the acting Director on the dock. He relied on his written statement dated February 13, 2023. He admitted that the oensive road was constructed in 2017 following demand from the people of Miriri after several community meetings. The County Assembly endorsed the decision. He said that there existed another road on the suit land but which would not have served the intended purpose since due to its gradient it is not motorable. The community around therefore demanded its re-location. 6. The Director showed the court a letter dated March 16, 2023 and a response from the Plainti’s Advocates dated June 25, 2021 showing their willingness to compensate the Plainti who he said had not expressed any objection to the re-location of the road. He said that the road measures 6 metres by 360 feet, approximately 0.36 Acres. The price index is about Kshs 400,000/= per Acre for that area. On cross-examination by Mr Okenye for the Plainti, the witness said that he had no valuation Report. He said that initially the road was meant to give access to the river but that now it served more public purposes. There is a High School, Primary School and a dispensary to be served by the new road. He said that compensation takes a dierent dimension and that this road enhanced the value of the land belonging to the Plainti. On re-examination from Mr Nyagarama for the Defendant, the witness said that the Defendant was willing to pay the Plainti Kshs 3,000,000/= in compensation. He said that the uprooted trees were at most 700 to 800. 7. The 2nd Defendant’s witness was Mr Zachariah Chisito Ondieki Ocharo, Chief works Ocer. He said that the family that owns the land across which the access road cuts was consulted and that they had no objection to the same and the maximum number of trees that were uprooted should number 600 to 700 and no more. But when they were small they could have been 1,600 at most. On cross-examination https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22616/eng@2023-06-05 2

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he said that the old road was too steep for use. They were ready to pay Kshs 3 Million to Kshs 4 Million unless advised otherwise by the Government Valuer. On re-examination he said he is not a valuer. 8. The Defendant admitted that there was acquisition of the Plainti’s parcel of land measuring 6 metres by 360 feet, approximately 0.36 of an Acre and places the price index of the area and Kshs 400,000/ = per acre. But he never produced any valuation Report. The Defendant’s witness also said that the Defendant was willing to compensate the Plainti for the loss of his land at Kshs 3,000,000/= to 4,000,000/=, that the uprooted trees were at most 700 to 800. In the absence of any report which put the trees at 1,601. And since they were only 2 years old, I would give each tree a value of Kshs 3,000/= giving it a total of Kshs 5,603,500/=. As for the value of the land, I award the Plainti Kshs 750,000/= bringing the total gure to Kshs 6,353,500/=. I will also grant him the costs of the suit together with interest on both at court rates with eect from the date of ling this suit to payment in full. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 5TH DAY OF JUNE 2023. MUGO KAMAU JUDGE In the Presence of: Sibota - Court Assistant Mr. Okenye for the Plainti Mr. Nyagarama for the Defendant: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22616/eng@2023-06-05 3

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