https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4957

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC APPEAL NO. E060 OF 2025** **JULIUS KAMAU MUTHONI::::::::::::::::::::::::::::::::::::::1ST APPELLANT** **SUSAN NJERI WANJIRU::::::::::::::::::::::::::::::::::::::::::2ND APPELLANT** **MERCY WANJIKU KARIUKI::::::::::::::::::::::::::::::::::::3RD APPELLANT** **JOHN KARANJA NJOROGE:::::::::::::::::::::::::::::::::::::4TH APPELLANT** **SYLVESTER MWANGI MUTHONI::::::::::::::::::::::::::::5TH** **APPELLANT** **MOSES NDIRANGU WANDIMI ::::::::::::::::::::::::::::::::6TH APPELLANT** **ABRAHAM MURIITHI MANIA::::::::::::::::::::::::::::::::::7TH** **APPELLANT** **SCHOLASTICA NDEWA MUSILI:::::::::::::::::::::::::::::::8TH APPELLANT** **LYDIA KAWILA MUSILI::::::::::::::::::::::::::::::::::::::::::9TH APPELLANT** **VERSUS** **KALAMA MUMBUA JANE::::::::::::::::::::::::::::::::::::::1ST RESPONDENT** **DAVID MAKOKHA:::::::::::::::::::::::::::::::::::::::::::::::2ND RESPONDENT** **BETTY MUINDI WILSON:::::::::::::::::::::::::::::::::::::::3RD RESPONDENT** **STANLEY KASYOKA WILSON:::::::::::::::::::::::::::::::4TH RESPONDENT** **(Being an appeal against the Judgment of Hon. S.A. Opande PM, sitting at the Magistrate's Court at Kangundo, delivered on 29 August 2025 in MCELC Cause No. 30 of 2019)** **BETWEEN** **JULIUS KAMAU MUTHONI::::::::::::::::::::::1ST PLAINTIFF/APPLICANT** **SUSAN NJERI WANJIRU::::::::::::::::::::::::::2ND PLAINTIFF/APPLICANT** **MERCY WANJIKU KARIUKI::::::::::::::::::::3RD** **PLAINTIFF/APPLICANT** **JOHN KARANJA NJOROGE:::::::::::::::::::::4TH PLAINTIFF/APPLICANT** **SYLVESTER MWANGI MUTHONI::::::::::::5TH PLAINTIFF/APPLICANT** **MOSES NDIRANGU WANDIMI:::::::::::::::::6TH PLAINTIFF/APPLICANT** **ABRAHAM MURIITHI MANIA:::::::::::::::::7TH PLAINTIFF/APPLICANT** **SCHOLASTICA NDEWA MUSILI::::::::::::::8TH PLAINTIFF/APPLICANT** **LYDIA KAWILA MUSILI:::::::::::::::::::::::::9TH PLAINTIFF/APPLICANT** **VERSUS** **KALAMA MUMBUA JANE::::::::::::::::::1ST DEFENDANT/RESPONDENT** **DAVID MAKOKHA::::::::::::::::::::::::::::2ND DEFENDANT/RESPONDENT** **BETTY MUINDI WILSON:::::::::::::::::::3RD DEFENDANT/RESPONDENT** **STANLEY KASYOKA WILSON::::::::::::4TH DEFENDANT/RESPONDENT** **AND** **NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY::::::::::::::::::::::::::::::::::::::::::::::1ST INTERESTED PARTY** **KISIMA PRESTIGE SELF HELP GROUP::::::::::::::::::::::::::::::::::::::::::::::::::::::2ND INTERESTED PARTY** **JUDGEMENT** The Appellants, being dissatisfied with the Judgment of the Honourable S. A. Opande, Principal Magistrate, delivered on 29 August 2025 in Kagundo MCELC Case No. 30 of 2019, appeals to the Environment and Land Court at Machakos against the said judgment and set forth the following grounds of appeal: 1. That the learned magistrate erred in law and fact by failing to appreciate that the Respondents’ quarrying and blasting operations were undertaken without the mandatory Environmental Impact Assessment license or blasting approvals as required under the Environmental Management and Coordination Act (EMCA), and were therefore unlawful ab initio. 2. That the learned magistrate misdirected himself in law by imposing an unduly onerous evidentiary burden upon the appellants, requiring expert testimony to prove causation of harm, whereas the appellants' oral evidence, photographic exhibits, and repair quotations constituted adequate proof on a balance of probabilities of the damage occasioned to the Appellants houses. 3. That the learned magistrate erred in law and fact by disregarding the respondents' express admissions that they lacked the requisite NEMA approvals, and failed to draw the necessary inference that such admissions corroborated the appellants' case of nuisance, environmental degradation, and risk to life and property. 4. That the learned magistrate erred in law in declining to issue an injunction to restrain the Respondents’ ongoing and unlawful quarrying operations, notwithstanding the clear statutory breaches and credible evidence of continuing harm, thereby denying the appellants the constitutional protection envisaged under Article 40 of the Constitution. 5. That the learned magistrate erred both in law and fact in holding that the Appellants had failed to discharge the burden of proof under Sections 108 and 109 of the Evidence Act, whereas the Appellants had established a prima facie case sufficient to shift the evidential burden to the Respondents, which burden they failed to discharge. The Appellants seek for Orders that; 1. The appeal be allowed. 2. The judgment of the Honourable Magistrate delivered on 29th August 2025 be set aside. 3. Judgment be entered in favour of the appellants as prayed in the Plaint dated 19th November 2018. 4. Costs of this appeal and of the suit in the lower court be awarded to the Appellants. They also filed an application under Order 40, Rules 1, 2, and 4, and Order 51, Rule 1 of the Civil Procedure Rules; Sections 33(c) and (e), of the Civil Procedure Act, Cap 21; Articles 40 and 42 of the Constitution of Kenya, 2010; and Sections 13 and 19 of the Environment and Land Court Act seeking the following orders: - 1. That this Honourable Court be pleased to certify this Application as urgent and hear it ex parte in the first instance. 2. That pending the inter partes hearing and determination of this Application, this Honourable Court be pleased to issue a temporary prohibitory injunction restraining the Respondents, by themselves, their agents, servants, assigns, or any persons acting under their authority, from quarrying, blasting, excavating, or carrying out any mining-related activities on land parcels DonyoSabuk/Komarok Block 1/62397, DonyoSabuk/Komarok Block 1/62398, and DonyoSabuk/Komarok Block 1/62399, or in any way causing noise, dust pollution, vibrations, or other environmental disturbance prejudicial to the Appellants' quiet enjoyment of their proprietary rights. 3. That the interim orders granted in prayer (2) be confirmed and extended pending the hearing and determination of the appeal. 4. That the Respondents bear the costs of and incidental to this Application. It is based on the grounds that the Appellants are the lawful occupants and immediate neighbours of land parcels Donyo Sabuk/Komarok Block 1/62397, Donyo Sabuk/Komarok Block 1/62398, and Donyo Sabuk/Komarok Block1/62399, and are entitled to the constitutional protection of their property and right to a clean and healthy environment under Articles 40 and 42 of the Constitution. The Respondents initially conducted quarrying and blasting activities on Land Parcels Donyo Sabuk/Komarock Block 1/62394, Donyo Sabuk/Komarok Block 1/62395, and Donyo Sabuk/Komarok Block 1/62396, which were stopped by the court in Kangundo ELC NO. 30 OF 2019 vide an order dated 6th December 2018. In an apparent bid to defeat and circumvent the said court order, the Respondents relocated their activities to the adjacent parcels – Donyo Sabuk/Komarok Block 1/62397, Donyo Sabuk/Komarok Block 1/62398, and Donyo Sabuk/Komarok Block 1/62399, which they were also injuncted from further excavation and or quarrying activities pending hearing and determination of Kangundo ELC Case No. 30 of 2019, which has now been determined. The lower court in Kangundo ELC Case No. 30 of 2019 noted correctly that the mining activities by the Respondent were being carried out without any Environment Impact Assessment Report and License, which is contrary to the law, but nevertheless proceeded to dismiss the lower court suit. Despite noting that they do not have any requisite authority to mine and quarry, The Respondents’ operations have continued being carried out without the requisite statutory approvals, including an Environmental Impact Assessment Licence under Section 58 of the Environment Management and Coordination Act and blasting permits under the Explosives Act, in clear contravention of environmental and safety laws. The said activities have been conducted continuously and without adherence to environmental safeguards, public participation, or regulatory supervision, thereby undermining the rule of law and established environmental governance frameworks. As a result, the Appellants’ homes have continued to develop structural cracks, suffer incessant noise and vibrations, and are engulfed in thick dust emissions, posing health and environmental risks. The ecological balance of the area has been severely degraded, as shown in the photographic and documentary evidence annexed to the supporting affidavit. This is the first appeal, the primary role of the court is to re-evaluate, re-assess and re-analyze the evidence on record and decide as to whether the conclusion reached by the learned magistrate was sound, and give reasons either way. This duty was emphasized by the Court of Appeal in Mbogo and another vs Shah (1968) EA 93 where it was held that; *“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matter on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It is for the company to satisfy this court that the judge was wrong and this, in my view it has failed to do.”* The court has considered the pleadings, evidence presented before it, submissions made as well as the authorities relied upon by the parties. In the trial court the Plaintiff/Respondent stated that the 1st and 2nd Defendants have leased Land Parcel Donyo Sabuk/Komarock block 1/62394, Donyo Sabuk/Komarock block 1/62395 and Donyo Sabuk/Komarock block 1/62396 for the purpose of carrying on quarring, blasting and excavating stones. that the 3rd and 4th Defendants are the registered owners of Land Parcel Donyo Sabuk/Komarock block 1/62394, Donyo Sabuk/Komarock block 1/62395 and Donyo Sabuk/Komarock block 1/62396 which parcels are adjacent to the Plaintiffs’. That the Defendants’ quarrying, blasting and excavation of stones has caused extensive damage on the Plaintiffs’ developments and residential homes rendering them unsafe and uninhabitable. The Plaintiffs produced copies of titles, registry maps, mutation form and photographs. PW1 Lydia Kawila Musili who testified stated that the Defendants did not show them any permit, license or authorization from the 1st Interested party and hence were strictly liable. The Defendants submit that the 3rd and 4th Defendants are the owners of Land Parcel Donyo Sabuk/Komarock Block 1/39404 and the subject quarry had been active since 1993. That the blasting was purposely to improve the roads within the said parcel of land having been sold to the Appellants and other parties to access their acquired portions. That sometime in March 2021, the blasting stopped as agreed by the community members and in compliance with court orders. That after delivery of the impugned judgement the Appellants filed this appeal and an application alleging that the Respondents have commenced excavation, quarrying and blasting. The Respondent state that they are not undertaking any quarrying activities on the suit property but are covering and securing previously existing pits. The Defendants produced minutes of various meetings between the miners and the community and an EIA report. The case of the Appellants is that the Defendants are strictly liable for the damages caused to their properties. In the case of **RYLANDS VS FLETCHER (1861-73) ALL ER REP 1,** the Defendant had employed contractors to build a reservoir on his land. While building it, the contractors discovered a series of old coal shafts and passages under the land filled loosely with soil and debris, which joined up with Plaintiff's adjoining mine. Rather than blocking these shafts, the contractors left them and as a result the Defendant's reservoir burst and flooded the Plaintiff's mine causing damage. “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 prima facie 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 the Plaintiff'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 unnecessary to 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 his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, 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 seems just 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.” Be that as it may, the Appellants did not produce any evidence to prove this liability except photos of cracks which were undated. No expert evidence was adduced to determine the nexus between the blasting and the cracks. The undated quotation from Aquila Tai Construction is not clear as to which property/properties it is referring to and when it was undertaken. The extent and magnitude of the damage cannot be ascertained. Indeed, it is not clear whether or not it is the blasting, quarrying and excavation that by the Defendants that caused it. Section 109 of the Evidence Act Cap 80 is clear that; *''The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.''* The well-known mantra *“he who asserts must prove.”* Was well pointed out by the Court of Appeal in Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR as follows; *“We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”* In James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR it was held that; *“It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Section 107 of the Evidence Act Chapter 80 Laws of Kenya succinctly states:* *Whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *Also, further, Section 108 of the Act states thus:* *The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.* *Again Section 109 of Act refers to the burden of proof of a particular fact. It states that:* *The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.* It is in evidence that the community and the miners had several meetings to try and resolve the issue and some of the Plaintiffs were in attendance. In attendance was also a representative from Administration one Beatrice Wanjiku. It is in evidence that the 7th Appellant Abraham Maina was the Chairman of the said Committee and he however never testified in court. The Respondents have deponed that there are no mining activities going on from 2020 and produced photographs of the suit land. I find that the learned Honourable Trial Magistrate did not err in law and in fact in finding that the Plaintiffs had failed to prove their case on a balance of probabilities. I find that the application and appeal are not merited and dismiss them with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 30TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**