https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4340

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC APPEAL NO. E001OF 2024** **CHINA ROAD & BRIDGE CORPORTATION……………... APPELLANT** **-VERSUS** **HENRY MUTUA WAMBUA........................ ………….... 1ST RESPONDENT** **BLEGIT AUCTIONEERS................................................ 2ND RESPONDENT** **(Being an appeal from the judgment of Hon. Evans Mbicha, Principal Magistrate delivered on 22nd February, 2021 in Makindu Principal Magistrate Court Civil Case No. 290 of 2017)** **JUDGMENT** 1. The Respondent had filed a suit against the Appellant before the lower court in which he sought the following reliefs: 2. **General damages.** 3. **Exemplary damages for the continued damage to the Plaintiff’s crops, land and properties.** 4. **An order directing the Defendants to construct proper drainages beside the railway line to divert water from entering into the land causing further damage to the Plaintiff’s land from the railway structure and any other relief that the honourable court deems fit and just to grant in the interest of justice.** 5. **Costs of this suit and interest.** 6. After a full hearing, the trial magistrate entered judgment in favour of the Respondent wherein the Appellant was found 100% liable for the Respondent’s crop damage. The court awarded Kshs.2,911,600/= for crop loss and Kshs.1,000,000/= exemplary damages. The court also directed the Appellant to construct proper drainage besides the railway line to direct water away from the Respondent’s land. The Appellant was condemned to pay costs and interest. 7. The Respondent had contended before the lower court that during the construction of the Standard Gauge Railway (SGR) in 2016, the Appellant constructed a culvert which directed rain water into his land. In the months of November and December, 2016, there were heavy rains which caused the rain water to destroy his crops. The destroyed crops were assessed at Kshs.2,911,600/=. 8. The Appellant was aggrieved by the judgment and preferred an appeal to this court in which he raised the following grounds of appeal: 9. **The learned magistrate erred in finding the Appellant liable without identifying the cause of action if any pleaded or proved.** 10. **The learned magistrate erred in law in awarding Kshs.2,911,600/= as general damages for value of the crops allegedly damaged based on an assessment report whose value is a liquidated claim that was not pleaded in the plaint.** 11. **The learned magistrate erred in law and in fact by failing to appreciate Kshs.2,911,600/= indicated in the assessment report was in nature of special damages that must be specifically pleaded and strictly proved.** 12. **The learned magistrate erred in law and in fact by failing to appreciate that the items forming the Kshs.2,911,600/= indicated in the assessment report was not specifically pleaded.** 13. **The learned magistrate erred in law and in fact by failing to appreciate that exemplary damages are only available where there is oppressive, arbitrary or unconstitutional action by the servants of the government.** 14. **The learned magistrate erred in law in awarding Kshs.1,000,000/= as exemplary damages against a private person where there were no oppressive, arbitrary or unconstitutional actions against the Respondent.** 15. **The learned magistrate erred in law in awarding Kshs.1,000,000/= as exemplary damages because the plaint did not plead the oppressive, arbitrary or unconstitutional actions upon which the claim or award was based.** 16. **The learned magistrate erred in fact and in law in failing to appreciate that the Respondent did not produce any or sufficient evidence to prove that it was the Appellant who dug the alleged trenches as alleged or at all.** 17. **The learned magistrate erred in fact and in law by failing to appreciate that the Respondent did not produce any sufficient evidence to prove that the alleged damages to the crops or that the alleged damages was caused by the alleged trenches.** 18. **The learned magistrate erred in the law by giving an order in the nature of mandatory injunction directing the Appellant to construct drainage structure contrary to the approved architectural and structural drawings, NEMA licenses and all issued permits.** 19. **The learned magistrate erred in law and in fact by failing to appreciate that the Respondent did not produce any or sufficient evidence to prove his case to the required standard of proof.** 20. This appeal was disposed of by way of written submissions. The Appellant filed submissions dated 30th October, 2025. The Respondent filed submissions dated 17th November, 2025. 21. The Appellant submitted that the Respondent based his claim on the tort of negligence but the particulars of the alleged negligence were neither pleaded nor proved. It was submitted that this was contrary to order 2 Rule 1 and 10 of the Civil Procedure Rules which require that parties should plead all the necessary facts and particulars upon which a suit is based. 22. The Appellant submitted that it was not aware that the Respondent’s claim was based on the tort of negligence until the Respondent filed submissions in opposition to a preliminary objection where it was alleged that his claim was based on negligence and the principles laid down in the case of **Rylands –vs** **Fletcher.** 23. The Appellant further submitted that assuming the Respondent’s claim was based on the tort of negligence, then the particulars of negligence were not set out. Reliance was placed on the case of **Marube –vs- Nyamuro (1983) KECA** **29 (KLR)** where the Court of Appeal held that a Plaintiff must plead and give the particulars of negligence by alleging and giving facts which he alleges constitutes negligence. 24. The Appellant further submitted that the award of Kshs.2,911,600/= was in the nature of special damages which had not been pleaded. The Appellant relied on the case of **Solomon Luyali –vs- Jeremiah Makore Wetende (2019)** **KEHC 3670 (KLR)** where Justice Musyoka distinguished between general and special damages. The judge stated that special damages are awarded for a loss which is quantifiable, calculable and or can be ascertained by attaching monetary value to it such as damage to a material like a house, a car while general damages are awarded for loss that is not capable of quantification, ascertainment or estimation such as loss to human life or a limb that cannot be quantified in monetary terms. Further reliance was placed in the case of **Joseph Kipkorir Rono –vs- Kenya Breweries Ltd & Another** which was cited in the case of **Omocha Enterprises limited & Another –vs- Mwebi** **(2025) KEHC 6553 (KLR)** where Kimaru J (as he then was) stated that special damages refer to pecuniary loss that is calculable as at the date of trial. 25. The Appellant further submitted that the special damages which had been ascertained as at 23rd November, 2016 were not pleaded and should not have been awarded. The Appellant relied on the Court of Appeal decisions in **Godfrey Julius Ndumba Mbogori & Another –vs- Nairobi City County (2018)** **KECA 702 (KLR),** **Coast Bus Services Ltd –vs- Sisco E. Murunga** **Ndanyi CA No. 192 of 1992** as quoted in the case of **Robert Okeri Ombeka –vs- Central Bank of Kenya (2015) KECA 464 (KLR),** and **William Kiplagat Maritim & Another –vs- Besnson Omwanga CA 180 of 1993** which was also cited in the **Robert Okeri Ombeka case (Supra).** 26. The Appellant finally submitted that the Respondent had not pleaded any facts which would have constituted aggravated damage as to call for grant of exemplary damages. It was further submitted that the Appellant is a private person and not a servant of government. It was further submitted that there was no proof of oppressive, arbitrary or unconstitutional action on the part of the Appellant as to call for award of exemplary damages. 27. The Respondent submitted that this court does not have jurisdiction to determine the appeal as the claim before the lower court was based on the tort of negligence and any appeal should have been filed before the High Court. The Respondent further submitted that exemplary damages were properly awarded as the damage to his land was continuous and that the award of Kshs.2,911,600/= was in the nature of assessed general damages which were assessed and accordingly awarded. 28. I have carefully considered the submissions by the parties as well as the grounds of appeal. I have also considered the proceedings before the lower court. This is a first appeal to this court. The duty of a first Appellate court was succinctly stated in the case of **Selle and Another** **–vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123** as follows: **“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”.** 1. The issues which emerge for determination are firstly whether this court has jurisdiction to deal with this appeal. Secondly, whether the trial magistrate was right in awarding a sum of Kshs.2,911,600/= as loss of crops of the Respondent. Thirdly, was there justification for grant of exemplary damages. Fourthly, was there justification for ordering the Appellant to redirect the rain water. 2. On the first issue, the Respondent submitted that his claim was based on the tort of negligence and as such, any appeal should have been filed at the High Court. A look at the plaint shows that the Respondent’s claim was based on damage of his land and crops as a result of alleged construction of trenches which diverted rain water to his land. He was claiming compensation for damage to his land and loss of his crops. The claim was not based on the tort of negligence. The issue of negligence was first raised in submissions and was never pleaded. The Respondent’s claim squarely falls within the jurisdiction of this court. The mere fact that the suit before the lower court was labeled as civil suit does not oust the jurisdiction of this court. I therefore find that the court has jurisdiction to deal with this appeal. 3. On the second issue, it is clear that the alleged damage to the Respondent’s crops was ascertainable and had indeed been ascertained. The Agricultural Officer had assessed the damage which was found to be Kshs.2,911,600/=. This amount constituted special damages which ought to have been pleaded before being proved. In the case of **Solomon Luyali (Supra),** a distinction was mad between special and general damages. 4. In the instant case, the loss which the Respondent suffered was calculable and indeed had been calculated. There is nothing which would have prevented the Respondent to plead the same. The assessment report was made on 23rd November, 2016 and the suit was filed 28th August, 2017. The Respondent having failed to plead the loss, the trial magistrate was wrong in awarding the same. 5. There are numerous decisions from the superior courts that special damages should be pleaded before the same are proved. This was the holding in the case of **Coast Bus Services Limited case (Supra).** 6. On the third issue there was no evidence which was adduced before the lower court which would have necessitated grant of aggravated damages. The Respondent had been compensated for the land where the SGR was constructed including the culvert which was put under the SGR. The evidence of the Appellant was that the culvert was constructed and directed the rain water to existing galleys which were on the Respondent’s land. The evidence of the Appellant which was not controverted is that crops of the Respondent were destroyed by rain water. I had the opportunity to watch the video recording which was produced before the lower court. This video clearly shows that there was a deep galley leading to the start of the culvert beneath the SGR. There is evidence that the water which destroyed the Respondent’s crops was draining from his land into the gulley through which water from the culvert was draining. 7. There was also evidence that there is a river nearby known as Ngui Ndeithya. The Respondent during cross examination admitted that this river is a seasonal river and that during heavy rains the river floods farms but not his farm. The Respondent’s claim that his farm was not flooded like any other neighbouring farms is not true if the evidence of the video he produced is anything to go by. The trial magistrate did not address himself to this video evidence which clearly shows that water was coming from the farm of the Respondent and collecting into the galley which was draining water from the culvert. There was therefore no basis of awarding exemplary damages of Kshs.1,000,000/- when there existed no circumstances to warrant grant of the same. 8. On the fourth issue, the video evidence shows that the impugned culvert is a huge box shaped culvert where animals can pass beneath the SGR. When that culvert was constructed there, the concerned engineers saw where the rain water could pass through. It is common knowledge that in any construction involving construction of a culvert which discharges water through ones land, there was to be compensation. The Respondent was compensated and he admitted as much during cross examination though he pleaded ignorance whether the compensation given to him included the culvert. 9. The Appellant’s evidence is that the culvert was constructed and it discharged rain water to galleys which already existed on the Respondent’s land. It was therefore wrong for the trial magistrate to order the Appellant to construct drainage besides the railway to direct water from entering the Respondent’s land. If this was to be implemented, it will mean that the huge culvert will be blocked and water will have no exit and will stagnate around the SGR which is above the culvert as seen from the video evidence. 10. From the above analysis, I find that the Appellant’s appeal has merit. The appeal is allowed with the result that the judgement delivered on 22nd February, 2021 is hereby set aside in its entirety and an order is made dismissing the Respondent’s suit in the lower court with costs. The Appellant shall have costs of this appeal. **..........................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 14TH JULY, 2026.** **IN THE PRESENCE OF:** Mr. Masila for Appellant Mr. Kituku for Respondent Court assistants – Kilonzo & Musyoki