https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3515

Mwangi v Muthoni & 2 others (Environment and Land Case E107 of 2022) [2026] KEELC 3515 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELC 3515 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E107 of 2022 JG Kemei, J June 5, 2026 Between Jecinta Njeri Mwangi Plaintiff and Lucy Muthoni 1st Defendant James Muturi Ngugi 2nd Defendant Pejom Contractors Limited 3rd Defendant Judgment The pleadings 1.Vide the Plaint dated 14/3/2022, the Plaintiff sued the Defendants seeking for the following:a.An order against the 1st and 2nd Defendants by themselves, their servants or agents ordering them to stop their drainage water/sewer/storm water from leaking from their properties into the Plaintiff's property known as LR No 12500/5 (parcel 951) [ hereinafter called the suit land].b.An injunction restraining the 3rd Defendant, whether by themselves, their servants, agents, or any other person or entity claiming under or through them, from directing the estate's storm water at the gate and property known as LR No 12500/5 [suit land]c.An order that the 3rd Defendants direct the estates' storm water to the river government sewer, or that they construct a drainage system whose levels will ensure that the estates' storm water does not leak into the Plaintiffs' property, LR No 12500/5d.Costs of the suit 2.It is averred that the Plaintiff is the registered owner of the suit land situated at Cedar Grove Estate in the Kasarani area of Nairobi County. The 1st Defendant is the owner of parcel 12500/4 [parcel No 950], while the 2nd Defendant is the owner of parcel No 12500/6. All the properties are adjacent to each other. 3.It is the Plaintiffs' case that the 1st and 2nd Defendants have caused their storm and waste water to drain onto her property, causing environmental risks, devaluation of her property, and exposure to communicable diseases, thereby interfering with her enjoyment of the said property. 4.On the other hand, it is averred that the 3rd Defendant was at all material times the contractor undertaking the construction of the estate road, who directed the estate's storm water to the property of the Plaintiff, preventing the Plaintiff from accessing her house, instead of directing it to the government drainage along the river. 5.The Plaintiff has particularised the loss and damage to her property under para 29 of the Plaint, the result of which has forced her to abandon her property due to flooding. 6.The 1st to 3rd Defendants refuted the Plaintiff's claim in their statement of defence dated 31/3/2023. Specifically, they denied allegations of drainage, sewer, or stormwater leakage from the 1st and 2nd Defendants' properties and demanded strict proof from the Plaintiff. Alternatively, the Defendants contend that the suit has been instituted to obstruct the cabro project initiated by members of Cedar Groove Estate. They further assert that the allegation of stormwater leakage is fictitious and an attempt to hinder the cabro project initiated by the estate management and well-wishers, in which the Defendants are not officials. They aver that the cabro works have been carried out professionally, with proper drainage, to the satisfaction of experts and technical teams, and urge the Court to dismiss the suit with costs. The Evidence 7.At the hearing, Mark Mwangi Kariuki testified for the Plaintiff as PW1. He stated that he is the Plaintiff's son. He relied on his witness statement dated 8/4/2024 in evidence-in-chief. 8.He stated that the Plaintiffs' land is not on a road reserve. They park along the road because their property is the last in the cul-de-sac. He further stated that, although there is a pit latrine ten feet from the boundary wall of the 1st Defendant, it is not leaking because it is not full. He also clarified that no irrigation is taking place at the property and that any existing farming relies on rainwater. They draw water from a nearby river and store it in a water tank. Furthermore, he denied the allegation that they are uncooperative in resolving the drainage issue in the estate. However, he was categorical that, in principle, they [Plaintiffs' family] refused to give a drainage wayleave to drain waste and storm water into the Kasarani Sports Complex, which is behind their [Plaintiff’s] land, as suggested by the Defendants. 9.During cross-examination by Mr Muruiki, Learned Counsel for the Defendants, the witness stated that the electric poles on the property were erected while he was in secondary school. He also did not know when his mother purchased the land, nor does he live on it. It is his deceased brother, Harrison, who lived on the suit land before his demise. He added that his mother has been in possession of the suit land for over 25 years. He is unaware of who acquired the land earlier between the parties in Court, except that the 1st Defendant constructed her house earlier than her mother. He was unable to state whether the Nairobi City County approvals were obtained before the parties constructed their houses. 10.He testified that stormwater drains onto the Plaintiff's land. When shown the letter dated 1/3/22 from the chief, he admitted that it raises an issue about the manhole's location on the road reserve and alludes to a boundary dispute. Regarding the ground survey report, the witness stated that he had no comment on it. He added that his mother has cultivated maize and bananas on the property. He stated that the pit latrine is located on the suit land and that there is no gap between the suit land and that of the 1st Defendant. Without presenting any documents, he stated that they pay their contributions for the estate. He stated that they did not contribute to the cabro project carried out by the 3rd Defendant, with the landowners' approval, through their estate committee, as evidenced in the minutes of the said committee. 11.In re-examination, he clarified that the 3rd Defendant was sued for draining storm water into the Plaintiff's gate, causing flooding onto the property. 12.Jecinta Njeri Mwangi relied on her witness statement dated 8/4/24 and submitted documents marked PW1 – 24. She stated that the 1st Defendant has constructed a perimeter fence with drainage holes that discharge wastewater onto her property. The 2nd Defendant is also discharging wastewater onto her property. The 1st and 2nd Defendants declined to cooperate by directing the storm water to the government sewer across the river. Instead, they insisted that the wastewater and stormwater be channelled through their property into the Kasarani Sports Complex, a proposal the Plaintiff rejected in principle, and were consequently labelled uncooperative. Furthermore, the 2nd Defendant created a drainage system through his property that now directs water to the Kasarani Sports Complex. 13.She stated that the wastewater discharged onto her property by the 1st Defendant is present throughout the year and cannot be attributed to rainwater, which typically occurs only during the rainy season. The situation has been exacerbated by the 1st Defendant, who has constructed two additional houses on her land, thereby increasing the discharge of waste water onto her property. To facilitate the illegal discharge of wastewater, the 1st Defendant has made holes in her perimeter wall, allowing wastewater to escape onto her property and causing a foul smell year-round. 14.She added that she has a pit latrine on the property that remains usable and is neither filled nor near the boundary between the 1st and 2nd Defendants' parcels. As a result, crops grown on her property are contaminated by waste, making them inedible and unhygienic. 15.The witness indicated that the 3rd Defendant undertook the cabro project within the estate, directing the estate's stormwater through an inadequate drainage system at her gate. This resulted in leakage and flooding onto her property, impeding access and reducing its value. Her persistent request to redirect the stormwater into the government drainage system across the river was denied by both the residents and the 3rd Defendant, who subsequently directed the water to her property and the Kasarani Sports Complex. 16.Under intense cross-examination by Mr Muriuki, the counsel for the 1st – 3rd Defendants, the witness stated that she was among the first to purchase plots in the estate, though she could not recall the year due to her age, which is over 100 years. 17.She stated that her deceased son lived on the land and that she is currently developing the property. She does not pay the service charge because she does not reside on the property. She acknowledged that her late son had parked his vehicle on the road reserve. She has cultivated bananas, mangoes, cassava, and oranges on the land using rainwater, but the crops are adversely affected by wastewater. Additionally, there is a pit latrine on the property. She constructed the front fence, as the 1st and 2nd Defendants had erected fencing on their respective sides. 18.PW3 – Mugo Riungu gave evidence in chief and adopted witness statement dated 8/4/24. He stated that he is a neighbour of the parties to the suit and that they have shared a boundary for over three decades. The discharge of wastewater from the 1st Defendant's property has long been an eyesore and a persistent issue for the estate. Despite numerous requests, including an offer to channel the waste through his parcel, the 1st Defendant remains uncooperative in resolving the matter and has deliberately elected to discharge illegally into the Plaintiffs' and PW3’s plot. She also declined to collaborate in directing the waste into the government drainage system across the river, unlike the neighbouring estate, which properly discharges into the official government drainage system available in the vicinity. 19.In cross-examination, the witness stated that he lives in Evergreen Estate, not Cedar, where the parties in the suit reside. He admitted that there are no sewer lines on the two estates and that residents use septic and soak pits. He stated that his plot shares a perimeter wall with the Plaintiff’s plot. Insisting that there is a government sewer line, he stated that he, like the parties in this suit, has yet to connect his drainage to it. He stated that none of the residents are connected to the main sewerage. He stated that the sewerage problem in the estate is severe, as waste drains into the river. 20.James Muturi Ngugi, the DW1, relied on his witness statement dated 11/5/23 and adduced documents in evidence marked as DEX No 1-25. He stated that he has resided on the estate for over 20 years, diligently fulfilling his obligations, including paying service charges. He further indicated that, under the guidance of the estate management committee, the 3rd Defendant was commissioned to undertake road works and drainage enhancements within the estate. The Plaintiff's claim appears to be designed to obstruct these projects and, at best, is unfounded. Additionally, the Plaintiff has encroached upon the road reserve, and this litigation was initiated as part of a cover-up. 21.During cross-examination by Ms. Macharia, Counsel for the Plaintiff, the witness, stated that there is a wayleave for storm water and that wastewater is discharged into an open field before flowing into a nearby river. He acknowledged that he has no documentation showing that the road and drainage works carried out by the 3rd Defendant received approval from the County Government or NEMA, as mandated by law. Furthermore, he was unable to present any evidence of an Environmental Impact Assessment report supporting the works. Similarly, no environmental mitigation measures were implemented before, during, or after the works. Specifically, he stated that there was no hydrological report to guide the drainage system designed and constructed by the 3rd Defendant. Neither the National Construction Authority [NCA] nor the Kenya Urban Roads Authority [KURA] approved or supervised the works. 22.In further testimony, he acknowledged that by the time the Plaintiff arrived on her land, he had constructed his perimeter wall demarcating his property from that of the Plaintiff and had installed a gate at the corner. His plot is parcel 6, whereas parcel 5 is owned by the Plaintiff. 23.In re-examination, he reiterated that the two plots [5 and 6] border each other. He stated that the drainage pipe passes through his compound along the thick perimeter wall. He accused the Plaintiff of blocking the entire stormwater drainage system. The PVC pipes are approximately two feet wide, capable of draining all the water. The estate comprises 26 houses, and he was not involved in the road and drainage works carried out by the 3rd Defendant. The written submissions. 24.The Plaintiff filed written submissions dated 6/3/26, while those of the Defendants are dated 11/3/2026. The Court has read and considered all the submissions. 25.the Plaintiff framed the following issues for the Court's determination: whether the 1st Defendant intentionally and unlawfully discharges sewage and wastewater onto the Plaintiff's property; whether the 2nd Defendant allows sewage and wastewater to leak from his property onto the Plaintiff's property; whether the 3rd Defendant’s drainage works are unlawful, have unlawfully diverted storm water onto the Plaintiff’s property, and constitute nuisance and negligence; whether the Defendants’ defences have any merit; and whether the Plaintiff is entitled to the reliefs sought. 26.On whether the 1st Defendant intentionally and unlawfully discharged sewage and wastewater onto the Plaintiff's property, it was submitted that the Plaintiff's witnesses presented compelling and corroborative evidence, including photographic documentation, which collectively led to the conclusion that the response is in the affirmative. 27.It was further submitted that the 1st Defendant’s liability is strict in nature, in line with the decision in Rylands v Fletcher [1868] I.R. 3 H.L. 330, where the Court found that the Plaintiff had allowed the accumulation of sewage, a non-natural and hazardous substance, on her property and had allowed it to escape onto the Defendants land. This principle was further cited in the case of David M. Ndetei v Orbit Chemical Industries Limited [2014] KEHC 4354 (KLR) it was held that:“The rule in RYLANDS VS FLETCHER is one that imposes strict liability on the owner of land for damage caused by the escape of substances to his neighbour's land…We think that the true rule of law is that the person who, for his own purposes,brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his own peril, and, if he does not do so, he is primafacie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to thePlaintiff's own default, or, perhaps that the escape was a consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessaryto inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaped cattle of his neighbour, or whose mine is flooded by the water from hisneighbour's reservoir, or whose cellar is invaded by the filth of his neighbour'sprivy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own, and it seems but reasonable and just that the neighbour who has brought something on his own property which was not naturally there, harmless to others as long as it is confined to his property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.But for his act in bringing it there no mischief would have accrued, and it seemsjust that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequences. If it does escape and cause damage, he is responsible, however careful he may have taken to prevent the damage. In considering whether a Defendant is liable to a Plaintiff for the damage which the Plaintiff may have sustained, the question in general is not whether the Defendant has acted with due care and caution, but whether his acts have occasioned the damage.From this case the prerequisites of a strict liability claim are that the Defendant made a “non-natural” or “special” use of his land; that the Defendant brought onto his land something that was likely to do mischief if it escaped; the substance in question escaped; and the Plaintiff's property was damaged because of the escape.” 28.In addition, it was submitted that the rule in Rylands v Fletcher imposes strict liability where the four elements are established. In Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] KESC 48 (KLR), the Court set out the elements as follows:a.The Defendant must make a non-natural use of his land;b.The Defendant must bring something onto his land which is likely to doc.mischief if it escapes;d.The thing in question must actually escape, ande.Damage must be caused to the Plaintiff’s person or property as a result of 29.The Court was urged to determine that the 1st Defendant, by maintaining drainage openings within her perimeter wall, was deliberately implementing a sewage discharge system, thus constituting a non-natural use of her land. The conduct of the 1st Defendant results in environmental damage and presents a health risk. The availability of an alternative system raises questions regarding the 1st Defendant's reasonableness and good faith in declining to mitigate the risk, notwithstanding the duty of care owed to the estate's residents. 30.That the 1st Defendant has accumulated substances in the form of wastewater/sewage capable of causing mischief to the Plaintiff's land. In Jaswinder Singh Jabbal v Mark John Tilbury & another [2019] KEHC 11152 (KLR), it was held that:“In the case of Rylands and another v Fletcher (1861-1873) ALL ER, it was held that:“ if a person brings or accumulates on his land anything e.g water, or filthy,or noxious fumes - which, if it should escape, may cause damage to hisneighbor, he does so at his peril. If it does escape and cause damage, heis responsible, however careful he may have been and whatever precautions he may have taken to prevent the damage.” 31.That the sewage and wastewater escapes continuously from the 1st Defendant's property through deliberate openings in her perimeter wall onto the Plaintiff's land. This is not accidental; the 1st Defendant has intentionally created and maintained these escape routes. PW3 - Mugo Riungu (paragraph 9) and PW2 - Max Kariuki Mwangi (paragraph 17) both confirm the continuous nature of this escape. The escape is ongoing, persistent, and entirely within the 1st Defendant's control to prevent. As a result, the Plaintiff has suffered loss and damage for which the Court was urged to hold the 1st Defendant liable. 32.As to whether the 2nd Defendant allows wastewater and sewage to leak from his property onto the Plaintiff's property, it was submitted that wastewater from the 2nd Defendant's plot is discharged into the Plaintiff's plot continuously, and his liability arises under negligence and private nuisance. The 2nd Defendant owes a duty of care to the Plaintiff, his neighbour, to ensure that sewage and wastewater from his property does not escape onto the Plaintiff's land. This duty arises from the neighbour principle in Donoghue v Stevenson [1932] AC 562. 33.It was submitted that all the elements of negligence are all satisfied on the evidence before this Court that is to say:a.The 2nd Defendant owed a duty of care to the Plaintiff as his neighbor.b.The 2nd Defendant breached that duty by failing to construct and maintain adequate drainage systems;c.The breach caused damage to the Plaintiff (continuous sewage leakage onto her property); andd.The damage was reasonably foreseeable - sewage leaking onto neighbouring property is an obvious and foreseeable consequence of defective drainage. 34.Regarding the issue of whether the 3rd Defendant's drainage works are unlawful, have unlawfully diverted storm water onto the Plaintiff's property, and constitute negligence and nuisance, the Plaintiff submitted that following the construction of the drainage, the Plaintiff's property has become uninhabitable, as stormwater is now directed onto the land, resulting in flooding and rendering the property inaccessible. The small opening created at the Plaintiff's gate is insufficient to drain all the water, thus causing flooding of the Plaintiff's land. 35.It was further submitted that the 3rd Defendant failed to obtain the necessary approvals for the drainage works as mandated by law, contrary to the obligation and duty of the 3rd Defendant to secure such approvals. Moreover, the 3rd Defendant has not provided any evidence to substantiate that material approval was granted for the works, and it is noted that the PVC pipes used were insufficient to drain the accumulated water in the estate following its collection at the Plaintiffs' gate. Consequently, the actions of the 3rd Defendant are characterised by negligence and constitute a nuisance. The 3rd Defendant owed a duty of care to the Plaintiff and other users of the drainage system to carry out the works in accordance with professionally accepted engineering practices. 36.The tort of private nuisance is committed by the person who actually creates the nuisance, regardless of whether they are acting on behalf of another. The 3rd Defendant's personnel and machinery were physically on the ground; they actively dug the trenches and laid the cabro that altered the natural flow of water, funnelling it directly into the Plaintiff's property. By physically creating the flooding hazard, the 3rd Defendant transitioned from a mere agent to an active and primary tortfeasor. 37.In Amaka Development Ltd v County Government of Taita Taveta, Environment and Land Case No. 140 of 2015, the Court unequivocally held that diverting public or community stormwater into a private property constitutes a continuous and actionable nuisance. 38.That the Plaintiff was not consulted before the drainage project was carried out, contrary to the provisions of Articles 10 and 69 of the Constitution that require that before any project is commenced, public participation ought to be carried out. In this case, the Plaintiff’s views were left out. 39.The Defendants' submissions are dated 11/3/2026. Relying on the judgment of the Court in Samson Gwer & five others versus Kenya Medical Research Institute & three others [2020] eKLR, the Defendants argued that the Plaintiff has not fulfilled the burden of proof under Sections 106 and 107 of the Evidence Act. It was further stated that the Plaintiff failed to provide evidence in the form of a report from the National Environmental Management Act [NEMA] or any other competent authority, such as the public health officer at the City County of Nairobi [NCC]. The submitted photographs lack context and do not demonstrate any leakage. Additionally, the Court was urged to find that the Plaintiff owns a pit latrine and a water storage tank on the property that could have caused the leakage. There is no evidence that the leakage was not caused by the marshy area characteristic of a wetland. Furthermore, it was noted that there is a dip drainage tunnel between the properties, thus there is no evidence of wastewater spillage onto the Plaintiff's land. There is no evidence of the accumulation of any substance capable of causing harm on the Plaintiff's land, and the cause of action advanced by the Plaintiff is, at best, superfluous; consequently, the Court was urged to disregard it. 40.It was further submitted that there are no holes in the wall deliberately left to discharge water onto the Plaintiff's land save that the wall is rough and misaligned in some places. No Environmental Assessment Impact Report (EAI) was adduced by the Plaintiff throughout the trial. The estate uses soak pits and septic tanks for waste management. No evidence was presented to show that a sewer is nearby. 41.Furthermore, public participation was conducted within the estate among the residents prior to the implementation of the drainage project. There is substantial evidence indicating the existence of irrigation on the Plaintiff's plot. Kasarani Stadium is situated 2.5 kilometres from the Plaintiff's plot, and the Plaintiff is merely sensationalising the evidence to placate justice. Accordingly, the Plaintiff was accused of withholding relevant evidence from the Court. Furthermore, the Defendant contended that the Plaintiff has encroached upon the road reserve and ultimately urged the Court to dismiss the suit. Analysis and determination 42.Having considered the pleadings, the evidence and the parties' submissions, the Court finds the following for determination;a.Whether the 1st and 2nd Defendants discharged wastewater to the Plaintiff’s landb.Whether the 3rd Defendant directed the estate's stormwater to the Plaintiff’s landc.Whether the Court should order the 3rd Defendant to direct the storm water to the river government sewer or construct another systemd.Costs of the suit 43.It is undisputed that the parcels belonging to the Plaintiff and the 1st and 2nd Defendants are contiguous. Furthermore, it is admitted that all involved parties are members of Cedar Estate. With the exception of the Plaintiff, the 1st and 2nd Defendants reside in privately constructed houses within the estate. It is also acknowledged that the 1st Defendant has built three houses on her parcel. 44.It is the Plaintiffs' case that the 1st and 2nd Defendants have channelled wastewater from their premises onto her property, causing a year-round sludge that emits foul odours and contaminates the plants growing thereon. The cause of action against the 3rd Defendant is that, during the construction of the road, storm water was drained onto the Plaintiffs' property, causing flooding and rendering it inaccessible. 45.Save for the 2nd Defendant, who gave evidence, none of the other Defendants led any evidence to contradict the Plaintiffs' case. The Plaintiffs' case against the 1st and 3rd Defendants, therefore, remains uncontested. 46.DW1, on the other hand, refuted the Plaintiffs' claims, asserting that the Plaintiff acted with malicious intent to impede the progress of the cabro project within the estate. It was further stated that the Plaintiff has exhibited uncooperative conduct in relation to the development of the estate by refusing to pay her contributions to the project and service charges. Additionally, it was contended that the lawsuit forms part of a cover-up of the Plaintiff's encroachment into the road reserve. Whether the 1st and 2nd Defendants discharged wastewater to the Plaintiff’s land 47.It is not in dispute that Cedar Groove Estate, Kasarani, is not connected to a main sewer line. Evidence shows that residents use soak pits and/or septic tanks for waste and storm water management. The National Environmental Complaints Committee report [NECC] dated 25/4/22 also indicates that wastewater management is a persistent problem in the estate. 48.The report at page 6 categorically stated that effluent was seeping from the grounds near the 1st and 2nd Defendants' septic tanks, through the perimeter walls, into the Plaintiff's compound. Pictures Nos 3 and 4, contained at page 8 of the said report, attest to this finding. 49.PW1 and PW2 led evidence and testified that the 1st Defendant has constructed a perimeter wall and left holes for the drainage of waste and sewage water to the Plaintiff’s property. They added that the water emits a foul smell and is degrading the environment. This evidence has not been contradicted, at least not by the 1st or the 2nd Defendant. The pictorial evidence adduced at the hearing shows holes in the perimeter wall, sludge beneath it, and visibly wet ground. These pictures are consistent with those in the NECC Report referred to earlier. 50.PW3 testified and reiterated the evidence adduced by PW1 and PW2, and added that wastewater from the 1st and 2nd Defendants' plots also drains into his property, despite his having dug a drainage tunnel between his property and that of the 1st Defendant. However, the tunnel becomes overwhelmed, causing an overflow on the ground. He added that the water is not rainwater, as evidenced by its foul smell. This evidence was not contradicted by the Defendants. 51.Applying the principles of strict liability as enunciated in the case of Rylands v Fletcher, as applied by the Court in the Kenya Wildlife Service case [supra], the Court finds that the 1st and 2nd Defendants have accumulated wastewater from their homes on their plots. Naturally, wastewater, if not channelled to a proper sewer, will cause mischief, and in this case it escaped onto the Plaintiff’s property, creating a degraded environment. Unchallenged evidence was led that the property has acquired a foul smell and that the water is soapy and contaminated. The plants thereon have been rendered inedible and polluted. The Court has not received any evidence to counter this evidence. The presence of holes in the perimeter wall is testament to illegal and deliberate channelling of the wastewater to the Plaintiff’s land. Evidence was led by PW3 and DW1 that the drainage issue has been a problem in the estate, and the fact that the 1st and 2nd Defendants have given it a deaf ear shows deliberate and conscious intent not to eliminate the problem by redirecting the waste and sewer water to the right drainage. 52.The Court concurs and applies the decision in Rylands and another v Fletcher (1861-1873) ALL ER, where it was held that:“if a person brings or accumulates on his land anything e.g water, or filthy, or noxious fumes – which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been and whatever precautions he may have taken to prevent the damage.” 53.PW3 led evidence that there is an alternative government drainage system, but the 1st and 2nd Defendants have elected to reject the solution. 54.In the case of David M. Ndetei v Orbit Chemical Industries Limited [2014] KEHC 4354 (KLR), the High Court applied the "polluter pays" principle and held:“Considering the above principles, I find that the Defendant has a primary duty to ensure that its activities do not affect the environment and when they do, then he has an obligation to take all measures to restore the environment." 55.The Court holds that the 1st and 2nd Defendants have a duty of care to the Plaintiff not to pollute her land. 56.Article 42 of the Constitution states as follows;“ 42.Every person has the right to a clean and healthy environment, which includes the right—a.to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; andb.to have obligations relating to the environment fulfilled under Article 70.” 57.The court finds that the Defendants owed the Plaintiff a duty of care not to pollute her property. 58.The Court answers the first issue in the affirmative. Whether the 3rd Defendant directed the estate's stormwater to the Plaintiff’s land. 59.The NECC report revealed that the Plaintiff's land is on the lower gradient as compared to the Defendant's lands, lending credence to the evidence of PW1 -3 that storm water floods the Plaintiff's land. 60.The report further observed that;“a.The works stalled and were not completed due to a boundary dispute between two neighbours over a wayleave for installing a stormwater drainage channel.b.There will be risks of flooding in the estate due to the lack of a drainage channel. The contractors propose that a way to leave should be provided to alleviate the risk.c.A resident of the estate had provided a way leave to channel storm water from the estate, but it has low capacity and might not be able to handle all the water in case of heavy rains.d.The company did not have a plan for the cabro installation project since it was a corporate social responsibility to the residents of Cedar Grove Estate.e.the contractor is willing to complete the last phase of the project by putting up a drainage channel once the neighbours reach an amicable agreement.” 61.DW1 led evidence that the 3rd Defendant did not obtain any approvals from National Environmental Management Authority [NEMA], Kenya Urban Road Authority [KURA], National Construction Authority [NCA] and the Nairobi City County because the works were gratuitous. 62.According to section 58(1) and (2) and Schedule 2 of the Environmental Management and Co-ordination Act (EMCA), the construction of local roads and facilities access roads among other similar constructions require the submission of an environmental impact assessment study report, and a project report to NEMA as part of the process for applying for an Environmental Impact Assessment (EIA) study report. These were all not applied/produced by the Defendants. 63.Further Rule 7 of the Environmental (Impact Assessment and Audit Regulations) 2003, NEMA requires an EIA Project Report that identifies potential environmental impact of the project (like flooding a private citizen's property) and the mitigation measures to be taken during and after implementation of the project. Due to the absence of the EIA Project Report, EMP and EIA Licence, the 3rd Defendant unlawfully directed all the estate's storm water at the Plaintiff's gate using an inadequate system. Had there been an EIA Project Report and EMP, the NEMA experts would have mandated that the water be safely directed to a river or public sewer, as the Plaintiff had reasonably requested. 64.In accordance with section 57 of Physical and Land Use Planning Act, 2019, any infrastructural development within a county requires explicit planning and structural approval. The 3rd Defendant required a development permission and approved engineering plans from the Nairobi County Government which were not obtained and/or produced in Court. 65.It is the law that in every development, including road cabro works, all the necessary approvals must be obtained, regardless of how the works have been financed. Clearly, the cabro works carried out on the estate were illegal and shoddy, and hence resulted in the illegal drainage of water into the private residence of the Plaintiff. 66.DW1 led evidence that he provided a means of leaving to drain the storm water. The size and quality of the pipe have been challenged by the Plaintiffs' witnesses as too inadequate to collect the storm water. This view was also highlighted in the NECC report. 67.In view of the forgoing the Court finds the fourth issue in the positive. 68.In the end, I enter judgment in favour of the Plaintiff against the Defendants as follows;a.The 1st and 2nd Defendants, by themselves, their servants or agents, are hereby ordered to stop their drainage, sewerage, or storm water from leaking from their properties into the Plaintiff's property known as LR No 12500/5 (parcel 951) [hereinafter called the suit land].b.An injunction be and is hereby issued restraining the 3rd Defendant, whether by themselves, their servants, agents, or any other person or entity claiming under or through them, from directing the estate's storm water at the gate and property known as LR No 12500/5 [suit land]c.The 3rd Defendants be and is hereby directed to drain the estates' storm water to the main government sewer, and or construct a drainage system whose levels will ensure that the estates' storm water does not leak into the Plaintiffs' property, LR No 12500/5d.Costs of the suit shall be in favour of the Plaintiff. 69.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF JUNE 2026 THROUGH MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Ms Wawira H/B for Macharia for the PlaintiffMs Weyimi H/B for Ms Gitonga Muriuki for DefendantsC/A – Ms Yvette Njoroge