[2017] KEELC 3157 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that the defendant's negligent blasting activities caused substantial damage to her property, rendering her houses uninhabitable. The plaintiff's evidence, including a valuation report and documentary proof of loss, was unchallenged due to...
Source-derived case information.
- Citation
- [2017] KEELC 3157 (KLR)
- Parties
- Plaintiff: Anjerina Karimi Mutegi; Defendant: Intex Construction Co. Ltd.
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 53 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- FM Njoroge
- Legal Topics
- Property Damage, Negligence, Compensation for Loss, Special Damages, Nuisance, Construction Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anjerina Karimi Mutegi
Plaintiff
Intex Construction Co. Ltd.
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the defendant's blasting activities caused damage to the plaintiff's property.
- 2 Whether the defendant was negligent in carrying out the blasting operations.
- 3 Whether the plaintiff is entitled to special and general damages for the loss suffered.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that the defendant's negligent blasting activities caused substantial damage to her property, rendering her houses uninhabitable. The plaintiff's evidence, including a valuation report and documentary proof of loss, was unchallenged due to the defendant's failure to participate in the proceedings. The court accepted the quantification of special damages and awarded general damages for pain, suffering, and loss of home. The defendant's prior offer of partial compensation further supported the plaintiff's case. The court concluded that the plaintiff was entitled to the reliefs sought, including special damages,...
Court Disposition
Judgment for the plaintiff.
Orders
- The plaintiff is awarded Kshs 1,134,710 as special damages itemized as: Kshs 1,109,310 for repair costs, Kshs 20,400 for valuation fee, and Kshs 5,000 for notice before action.
- The plaintiff is awarded Kshs 400,000 for pain, suffering, and loss of her home.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 53 OF 2017
FORMERLY MERU ELC CASE NO.292 OF 2016
ANJERINA KARIMI MUTEGI…………………….............…….PLAINTIFF
VERSUS
INTEX CONSTRUCTION CO. LTD..………………………...DEFENDANT
JUDGMENT
1. In her plaint dated 22nd December, 2016 the plaintiff seeks judgment against the defendant for:
a) General damages for pain, suffering and loss of her home.
b) Special damages of K.shs 1,134,710/=
c) Costs of the suit
d) Interest on (a), (b) and (c) above.
e) Any other or better relief that this Honourable court deems fit and proper.
2. The plaintiff claims that on or about the 30th day of April, 2016 while blasting rocks for use on the Chiakariga – Tunyai road which the defendant was tarmacking, the defendant negligently, carelessly and recklessly employed blasting machines and devices which vigorously shook her houses situated on her land parcel No. THARAKA/TUNYAI “A”/455 as a result of which her houses got seriously damaged and developed irreparable cracks on the walls and floors consequently rendering them uninhabitable.
3. As the defendant, despite proper service, had failed to enter appearance and file a defence, the plaintiff set down the suit for hearing.
4. PW1, the plaintiff, told the court that on 30th April, 2016, the defendant used blasting and other machines which destroyed her properties. She produced a notice signed by the defendant’s agent warning residents that blasting would take place on 30th April, 2015 and asking them to ensure their safety. She also produced a copy of a cheque for the sum of K.shs 328,905/= which the defendant, after admitting liability offered to pay her as compensation for the damage caused to her property. She also produced a valuation report made by Rima Valuers Limited, Licensed Valuers, estimating the loss she had suffered through the actions of the defendant as amounting to the sum of Kshs.1,109,310/=. The report also contained photographs showing the damage caused to the plaintiff’s property.
5. The plaintiff told the court that she was sleeping in her kitchen as the actions of the defendant had rendered her two houses inhospitable.
6. PW2 testified that he had witnessed the destruction wrought on the plaintiff’s houses through the activities of the defendant.
7. I find that the plaintiff has proved her case to the standard required in Civil matters.
8. I grant the following orders:
1. The plaintiff is awarded the sum of Kshs 1,134,710/= as special damages itemized as follows:
a) Costs of repairing both houses Kshs 1,109,310/=
b) Valuation fee Kshs 20,400/=
c) Notice before action Kshs 5,000/=
2. The plaintiff is awarded the sum of Kshs.400,000/= for pain, suffering and loss of her home.
3. Costs of the suit and interest on 1 and 2 above at court rates are awarded to the plaintiff from the date of delivery of this judgment.
9. It is so ordered.
Delivered in open court at Chuka this 11th day of April, 2017 in the presence of:
CA: Ndegwa
Nyamu Nyaga h/b Kiautha Arithi for the plaintiff
P.M. NJOROGE
JUDGE