https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3745

China Civil Engineering Construction Corporation Limited v Nduti (Environment and Land Appeal E005 of 2025) [2026] KEELC 3745 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3745 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Appeal E005 of 2025 MN Gicheru, J June 18, 2026 Between China Civil Engineering Construction Corporation Limited Appellant and Teresiah Wangui Nduti Respondent (Being an appeal from the decision of the Honourable Principal Magistrate (M/s.) Susan Mwangi in Murang’a MCELC No. 101 of 2022 delivered on the 23rd December, 2024) Judgment 1.In memorandum of appeal dated 22-1-2025, the Appellant seeks the following orders.i.This appeal be allowed and the judgment dated 23-12-2024 be set aside, varied and vacated by finding that the Appellant was not liable for the damage to the Respondent’s property at all and thereby dismissing the suit against the Appellant for failure by the Respondent to prove liability against the Respondent.ii.That without prejudice to prayer 1 above, his appeal be allowed and the judgement dated 24-12-2024 be set aside and varied by vacating both the order to rehabilitate the Respondents parcel of land being LR. No. Loc.19/Gacharageini/683 and the award for Kshs. 500,000/= for aggravated damages for trespass and instead thereof the Respondent be awarded Kshs. 51,672/= being the amount assessed as damages by the Appellant’s valuer and not more than Kshs. 287,300/= being half the costs of rehabilitation of the two parcels namely Loc.19/Gacharageini/683 and 701 as detailed in the Trans Europa (K) Ltd report dated 7-11-2022 adduced in evidence by the Appellant.iii.Costs of this appeal be borne by the Respondent.iv.Any other relief that this court may deem fit and just to grant. 2.The Appellant relies on 5(five) grounds of appeal. That the Honourable Senior Principal Magistrate erred in law and in fact-i.in holding that the Appellant was liable for the washing off the Respondent’s land measuring 0.125 acres whereas the Respondent did not prove any liability or negligence against the Appellant for the damage to the Respondent’s land whatsoever;ii.in awarding the Respondent aggravated damages of Kshs. 500,000/= for unlawful trespass whereas the Respondent did not plead for such damages nor prove any trespass;iii.in granting an order for rehabilitation of the suit land which was not pleaded;iv.in failing to consider the Appellant’s evidence and written submissions on the issue of quantum whereby the Appellant’s report which had quantified the actual loss at Kshs. 51,672/= whilst the Respondent’s report indicated that his property could only be rehabilitated after building gabions on neighbouring land belonging to a person who was not a party to the suit and which the Appellant could not access.v.By awarding the Respondent double compensation in terms of rehabilitation of the damaged property and damages of Kshs. 500,000/= instead of only one award as pleaded in the amended plaint. 3.The facts of the case according to the Respondent who was the Plaintiff in the lower court are as follows. Firstly, she is the registered owner of the suit land which is No. Loc.19/Gacharageini/683 which measures 0.4 hectares. Secondly, in the year 2021, the Appellant’s agents were constructing the Gacharageini- Kimutai road when they broke a high pressure water pipe. This water entered the Respondent’s land and washed away approximately 0.0125 acres of the suit land. Thirdly, the Respondent attributes this breakage of the pipe to the negligence of the Appellant and pleads the following instances of negligence.a.Failure to ensure that the high pressure pipes were not damaged during excavation.b.Failure to ensure that any run off water from the pipes did not enter the Plaintiff’s land.c.Failure to ensure the raging waters from the burst pipes did not cause damage on a portion of the Plaintiff’s land.d.Failure to ensure that in case of a burst pipe, the escaping water did not enter the Plaintiff’s land.e.Failure to ensure that the pipes were not broken by the Appellant’s excavators.f.Failure to put in place measures to prevent damage to the Plaintiff’s land in the event the water pipes burst in the process of excavating by the Appellant.g.Failure to take preventive measures to ensure that the Plaintiff’s land was not damaged in case of the water pipes bursting.Three, the Defendant’s actions rendered the Plaintiff’s land unusable and a security threat to the Plaintiff since the residual water created a deep valley on part of the suit land. Four, top soil on the lower part of the land measuring 0.125 acres was washed away creating a very deep valley whose current open market value is Kshs. 500,000/=. Finally, a report dated 26-7-2023 prepared by a registered valuer assesses the damage at Kshs 500,000/= 4.The facts of the case according to the Appellant are as follows. One, it is not responsible for the breaking and bursting of a high pressure water pipe at all. Two, it is not responsible for the loss of about 0.125 acres of the Respondent’s land and the Respondent has not lost ownership of the land.Three, the valuation report dated 16-9-2022 is for the whole of the suit land and not just the 0.125 acres thereof. Finally the Appellant engaged an independent valuer who found the value of the damage to be only Kshs. 51,672/=. 5.In her judgement dated 24-12-2024, the learned trial magistrate found in favour of the Respondent . The reasons for the finding were as follows.Firstly, she found that the water pipes burst due to interference by the Appellant and not through natural causes. In her judgment, this was a case res ipsa loquitor or the damage speaks for itself because the pipes would not have burst in their ordinary state and it is the action of the Appellant that caused the burst. Secondly, she found that the rule in Rylands Vs. Fletcher applies in this case because of the continuous discharge of the water to the Respondent’s land. Thirdly, the burst pipes have other consequences which are deleterious to the environment and for this reason the Respondent was entitled to have the land rehabilitated at the expense of the Appellant.The period required to restore the land was about 12 years. 6.Counsel for the Appellant filed written submissions dated 3-2-2026. From the submissions, the following issues can be discerned.i.Whether the Appellant was responsible for the washing off the Respondent’s land.ii.Whether the aggravated damages were proved.iii.Whether rehabilitation of the land was pleaded and if it is double compensation.iv.Whether the Appellant’s evidence and submissions were considered in the judgment of 24-12-2024.v.Whether the Respondent proved her case to the required standard.vi.Whether the rule in Rylands Vs. Fletcher applies to this case.vii.Whether a Court can grant an order that is unenforceable and which affects persons who are not parties to the suit 7.I have carefully considered the appeal in its entirety including the record, the grounds, the submissions by learned counsel for the parties, the issues raised therein and the law citedThis being a first appeal, the principle in the case of Selle vs Associated Motor Boat Co. Ltd. 1968 EA 123 applies it as to the following effect.“A first appellate court has a duty to reconsider, re-evaluate and analyse the entire record and draw its own conclusions independently while bearing in mind that it did not see or hear the witnesses testify and give due allowance for that disadvantage.”Applying the above principle to this case, I make the following findings on the issues raised. 8.Regarding the first issue, I find that the cause of the damage was the burst pipes and the cause of the bursts was the excavation by the Appellants. Everything was alright until the Appellants excavated the road. The Respondent has been able to attribute the burst pipes to the excavation by the Appellants. The acts of excavation by the Appellants are consistent with the bursting of the pipes. Before they came, everything was alright. The pipes only burst after the excavation or during the excavation. 9.As for the second issue, I find that the respondent did not prove aggravated damages. Aggravated damages are awarded where the Defendant’s conduct causes the claimant additional injury to dignity, feelings, reputation, or mental distress beyond the harm arising from the underlying wrong itself. In this case there are no aggravating circumstances. The action of the Appellant was not deliberate. It was only negligent. It is a misnomer for the learned trial magistrate to call the damages awarded to the Respondent aggravated damages. In the amended plaint dated 3-1-2023, there is no claim for aggravated damages. However, the damages of Kshs. 500,000/= have been proved. The only problem is calling them aggravated. 10.It is my finding as regards the third issue that the order of the rehabilitation of the suit land was neither pleaded nor proved. It is therefore double compensation. The Respondent’s claim is limited to Kshs. 500,000/= which she says is the value of the portion of the land that was eroded away. She did not ask for anything more. The learned trial magistrate was wrong to award that which was not pleaded. Order 2 rule 6 of the Civil Procedure Rules prohibits a party from departing from its pleadings. It provides;-“6(1) No party may in any pleading make an allegation of fact or raise any new ground of claim inconsistent with a previous pleading of his in the same suit.”The rationale of this is to prevent trial by ambush. Awarding what is not pleaded is derogation of a fair hearing and contravenes Article 25 of the Constitution which provides that one of the fundamental rights and freedom which is not limited is one of a fair trial. See Article 25(c) of the Constitution. 11.Looking at the fourth issue, I find that the Appellant’s evidence was considered. The opening paragraph at page 2 of the judgment starts with what the Appellants case was all about. It reads,“DW 1’s evidence that the same was from nature of the law but not by negligence of their agents, servants or employees.”Again at page 3 of the judgement somewhere in the middle of the last paragraph the judgement reads“To start with, both… availed valuation reports which were for apart like heaven and land…”This shows that there was limited consideration of the Appellant’s evidence.I further find that the trial magistrate was right to dismiss the Appellant’s report and valuation. Its witness, Julius Ngugi Mbugua, was not able to prove that he is a qualified valuer, a land expert or an Agricultural Officer. Being none of the above, I find that he was not qualified to prepare the report that he filed. 12.As for the fifth issue, I find that the Respondent proved her claim for Kshs. 500,000/= to the required standard which is simply on a balance of probabilities. As has been stated before, she was able to attribute the loss of her land to the sole action of the Appellant. 13.It is not correct to say that the rule in Rylands Vs. Fletcher applies in this case. The Appellant is not possible for the placing of the high pressure water pipes on the road. We are not told who is responsible for this. The only reason that the Appellant was liable was for breaking the already existing water pipes. In the case of Rylands Vs. Fletcher, the Defendant was the one who accumulated the water on his land. This water escaped and caused damage to a neighour’s land. That is the difference. It is clear therefore that the rule in Rylands Vs. Fletcher does not apply in this case. 14.Finally, I find that the learned trial magistrate erred in making the rehabilitation order because it was not pleaded and secondly, it was not executable by the Appellant or his agents. Once the Respondent was awarded what she claimed, it was up to her to figure out whether to rehabilitate the land or not. The Court could not award what was not pleaded. 15.In conclusion and for the reasons already given, I order as follows.a.A declaration is hereby made that the Appellant’s actions caused 0.125 acres of the respondents land parcel No. Loc. 19/Gacharageini/683 to be eroded.b.The Respondent is awarded special damages of Kshs. 500,000/= for the damage caused on her land by the actions of the Appellant.c.The order for the rehabilitation of the suit land is hereby revoked.d.Half costs of this appeal and in the lower court to the Respondent.e.The Respondent is also awarded interest from the date of this judgment till payment in full.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 18TH DAY OF JUNE, 2026.M.N. GICHERUJUDGE.Delivered online in the presence of; -Court Assistant – AntonyAppellant’s Counsel – Mr ThuoRespondent’s Counsel – Miss Waititu