Introduction and Background
The Plaintiff’s Case
1. This suit was transferred to this Court for hearing and determination following an order issued in ELCMISC E061 of 2021. The Plaintiff’s case, as set out in his pleadings, is that he is the registered and lawful owner of all that parcel of land known as L.R. KAJIADO/KITENGELA/26501, situated at Tuala behind the Africa Nazarene University in Kajiado County, upon which he has constructed his residential home. The Plaintiff asserts that he had resided on the suit property with his family for approximately eight (8) years prior to the events giving rise to this suit. The Plaintiff further states that the Nairobi-Naivasha Standard Gauge Railway (SGR) construction, which was commissioned by the Kenyan Government in October 2019, was undertaken by the 1st, 2nd, and 3rd Defendants and passes within approximately 900 meters from his residence.
2. The Plaintiff reproaches the 1st and 2nd Defendants for setting up and operating an illegal quarry site near his home during the construction of the second phase of the SGR project. The core grievance is that extensive destruction and damage were occasioned to the Plaintiff’s house by the activities of the 1st and 2nd Defendants resulting in massive structural cracks on the walls of his house. The Plaintiff attributes this destruction to the construction and operation activities by the 1st and 2nd Defendants from the quarry site, specifically the use of heavy construction machinery and rock blasting, both of which generated excessive vibrations. In addition to the structural damage, the Plaintiff alleges that the 1st and 2nd defendants’ activities resulted in unmitigated air pollution into his home due to dust emanating from earthwork construction and the movement of heavy transport vehicles along a busy access road. Accordingly, the Plaintiff condemns the 1st and 2nd Defendants for their negligent failure to take necessary precautionary measures to cushion his house from destruction and prevent the air pollution and the nuisance.
3. The specific particulars of negligence as enumerated by the Plaintiff in his claim consist of the following:
(i) The 1st and 2nd Defendants, aware of the magnitude of the construction of the SGR, and cognizant of the fact that owing to the close proximity of some homes, including the Plaintiffs’, and the fact that the homes stand on ground with the same rock type as the quarried rock is exposed, made them susceptible to experiencing greater vibration velocities, owed a duty of care to the Plaintiff. This would have necessitated that they take all the necessary precautions to prevent the construction from damaging the Plaintiff’s house.
(ii) The 1st and 2nd Defendants breached that duty of care by setting up an illegal quarry adjacent to the Plaintiff’s house, and by continuing with the blasting of rocks, in flagrant disregard of the Plaintiff’s woes.
(iii) The 1st and 2nd Defendants’ breach of their duty of care to the Plaintiff led to the destruction of the Plaintiff’s house, which developed massive cracks, leading to the front part of the house being blasted off, causing significant structural damage.
(iv) The construction and operation of the quarry behind the Plaintiff’s house destroyed the house, thus exposing the Plaintiff and his family to unmitigated air pollution caused by dust arising from the excavation and speeding trucks which made household members susceptible to constant asthma attacks and allergies.
(v) Subsequent to the Plaintiff’s complaint to the 1st and 2nd Defendants about the adverse effect of the construction of the SGR on his house, the 1st and 2nd Defendants sent a valuer to ascertain the extent of the damage, but failed to follow up when the Plaintiff expressed his dissatisfaction with the valuation.
(vi) Further, following the Plaintiff’s dissatisfaction with the valuation, whose report he was not provided with, he sought to have an independent valuer carry out the valuation, however the 1st and 2nd Defendants refused to facilitate the proposed valuation.
(vii) The 3rd Defendant, who was also notified by the Plaintiff about the destruction of his house did not have the matter resolved, upon the 1st and 2nd Defendants’ refusal to facilitate the valuation by the independent valuer.
(viii) The Plaintiff wrote to the 4th and 5th Defendants, enquiring whether the 2nd and 3rd Defendants were given authority to set up a quarry behind his house. Nonetheless, they failed to respond, yet they would have mitigated the extensive damages on the Plaintiff’s house, had they acted when they were contacted.
(ix) The 5th Defendant also disregarded a letter addressed to it, seeking clarification on issues arising from the excavation by the 1st, 2nd and 3rd Defendants, and given its constitutional mandate, it would have intervened in the matter to prevent the extensive destruction of the Plaintiff’s house, had it acted promptly; and
(x) The breach of duty of care by the 3rd, 4th and 5th Defendants in failing to intervene in the construction of the SGR by the 1st, 2nd Defendants led to the destruction of the Plaintiff’s house
4. In the alternative or in addition, the Plaintiff contends that the construction of the SGR and the operation of the adjacent quarry by the 1st and 2nd Defendants constituted a nuisance to his family, in that it severely interfered with his occupation and quiet enjoyment of his property. The Plaintiff specifies that, due to the magnitude of the nuisance and structural fear that the house would crumble, he and his family had to find alternative accommodation. The Plaintiff moved to his sister-in-law’s house and was forced to rent a separate house for his older children, partly to preserve the condition of the suit property as evidence and partly out of safety concerns.
5. The particularized aspects of nuisance as pleaded by the Plaintiff include the following: (i) The construction of the SGR by the 1st and 2nd Defendants encroached on part of the Plaintiff’s land.
(ii) The rock blasting and resultant vibrations during the construction of the SGR by the 1st and 2nd Defendants caused destruction of the Plaintiff’s house, which developed massive cracks, occasioning into blasting off of the front part of the house thus causing significant structural damage.
(iii) The setting up of a quarry by the 1st and 2nd Defendants near the Plaintiff’s house led to the destruction of the back part of his house, therefore exposing him and his family to excessive air pollution which emanated from the earthwork and speeding transportation trucks.
(iv) The construction of the SGR interfered with the Plaintiff’s quiet enjoyment of his house, as he and his family had to sleep outside in tents, before opting to find alternative accommodation, given the extensive nature of the damage.
6. Furthermore, the Plaintiff expressed specific fears that any valuer engaged by the 1st and 2nd Defendants to repair his house would not have restored it to its former state. Regardless, he averred that he would not restore his house, despite desiring to do so, because reconstruction would temper with the evidence. It was maintained that the unfortunate events caused by the construction of the SGR heavily weighed on the Plaintiff’s mental health, for he gradually reeled into chasms of depression, necessitating that he seek the services of a professional therapist. The Plaintiff accuses the 1st and 2nd Defendants of refusing to compensate him for the enormous losses suffered despite being issued with a demand for compensation.
6. Premised upon the foregoing, the Plaintiff prays that Judgement be entered against the Defendants, jointly and severally, as follows:
1) On the First Cause of Action (Negligence/Constitutional Infringement)
(a) A declaration that the 1st Defendant’s method of excavating rocks by way of blasting within a radius of nine hundred (900) meters from the Plaintiff’s residential house situated on L.R. KAJIADO/KITENGELA/26501, Kajiado County is illegal, in breach of the law and an infringement of the Plaintiff’s right to a safe and clean environment.
(b) A declaration that the Plaintiff is entitled to damages assessed at Kenya Shillings Thirty Million (Ksh.30,000,000/=), and the Defendants are liable to pay reparation for the damages occasioned to the Plaintiff’s house.
(c) The Honorable Court awards general damages to the Plaintiff for the destruction of his house, expenses incurred in renting a house for his children, hospital bills due to asthma attacks as a result of the dust, subsequent to the destruction of his house.
(d) A mandatory injunction against the Defendants to compensate the Plaintiff for the damages causes to the suit property and, damages for the nuisance.
(e) The Honorable Court be pleased to award aggravated damages to the Plaintiff for the infliction of emotional distress by the Defendants and costs that he has incurred to attend therapy.
(f) The Honorable Court be pleased to issue an order directing the Defendants to jointly and severally bear the costs of this suit for being the parties responsible, through acts/omissions, for the losses incurred by the Plaintiff.
2) On the Second Cause of Action (Nuisance)
(a) A declaration that the Plaintiff is entitled to damages, and the Defendants are liable to pay reparation for the damages occasioned to the Plaintiff’s houses.
(b) The Honorable court awards exemplary damages to the Plaintiffs.
(c) The Honorable court be pleased to award costs of the suit to the Plaintiff.
The Defence Case
7. On 16th May 2022, the 1st and 2nd Defendants entered appearance through Sina Law Advocates, following up with a memorandum of appearance dated 17th May 2022. By way of a Statement of Defence dated 17th May 2022, the 1st and 2nd Defendants renounced all assertions leveled against them by the Plaintiff and put him to strict proof. According to the 1st and 2nd Defendants, their construction activities never caused actionable levels of noise, dust pollution, or material cracks to the Plaintiff’s structure, as their operations fully complied with all NEMA conditions and all applicable laws.
8. The 1st and 2nd Defendants further asserted that the Plaintiff’s structures were illegal, as construction was undertaken without necessary development permissions or occupation permits from the relevant County Government Directorate. They also alleged that the Plaintiff did not hold a valid change of user, with the parcel of land still designated for agricultural use rather than residential. As a consequence, they argued that legal claims cannot be based on an underlying illegality. In addition, the 1st and 2nd Defendants denied ever being served with the Plaintiff’s demand and notice of intention to sue. They prayed for the dismissal of the Plaintiff’s claim with costs.
9. The 3rd and 4th Defendants did not participate in these proceedings, as they neither entered appearance nor filed responses to the Plaintiff’s claim.
Analysis of Evidence
10. PW1, Kamal Abdul Haleem, the Plaintiff, testified that the Nairobi-Naivasha Standard Gauge Railway (SGR) passed in front of his residential property in Tuala. He stated that a quarry site was established approximately 900 meters from his home. According to his testimony, blasting operations were conducted during both day and night, yet he was never consulted prior to their commencement, despite having lived on the property for twelve (12) years. The Plaintiff urged the court to grant the prayers sought, pointing to pictorial evidence submitted to demonstrate the resulting damage to his house.
11. During cross-examination, the Plaintiff confirmed that he is the owner of the land where he constructed his house. He conceded, however, that he did not possess architectural designs, approved construction plans, or surveyor-verified evidence to definitively establish that his residence was 900 meters from the quarry site. He further stated that while he had notified NEMA, the County Governor, and the Ministry of Infrastructure regarding the quarry operations, he could not produce documentation from the Ministry of Water or the Department of Geology to confirm that the quarry was illegal. Despite maintaining that the SGR project had encroached upon his land due to the effects of blasting, he stated that he had not formally notified the National Land Commission of this claim.
12. PW1 testified that he rejected a compensation proposal of Kshs. 604,560/= from the 1st and 2nd Defendants. He explained that a woman named Mary, an employee of the 1st and 2nd Defendants, had directed him to sign a document accepting the amount without first consulting his family or legal counsel. He further informed the Court that he has since undertaken repairs on the property and currently resides there.
13. In re-examination, PW1 contended that he should not be faulted for the failure of NEMA and other relevant government bodies to respond to his letters. He reiterated that he rejected the compensation offer because the valuation was too low and because he had not been permitted to participate in the valuation process. He also clarified that the house had not been completely renovated. Finally, he stated that he had filed a copy of his title deed, which he noted was for a freehold interest, and that he did not believe submitted drawings of his house were mandatory evidence.
14. PW2 testified that the construction of the SGR destroyed her home. She related that she and her children were traumatized when a portion of the structure collapsed, and debris fell upon her while she was sitting down. She further stated that since the incident, she has suffered from extensive anxiety.
15. Under cross-examination, PW2 testified that they incurred expenses when reopening the entire house for use after it was damaged. She admitted, however, that she did not have receipts to prove the expenditures nor medical reports to verify her health conditions.
16. During re-examination, PW2 specified that the entire house required repair because the blasting had affected half of the structure.
17. PW3, Peter Wakahara, a registered and practicing valuer based at Circuit Valuers, stated that he was instructed by the Plaintiff to carry out an open-market valuation of the main house, garden, and fence. He informed the Court that this valuation was undertaken following the reconstruction of the house after it had been damaged by quarry activities during the SGR construction. PW3 testified that, based on his valuation report dated November 24, 2023, which he produced in support of his evidence, the Plaintiff’s property was valued at Kshs. 40 Million.
18. When cross-examined, PW3 admitted he could not establish when the Plaintiff’s house was damaged, as his inspection occurred only after the house was reconstructed. He agreed with the principle that an assessment of damages ought to be undertaken immediately after the damages occur. PW3 further acknowledged that his report did not specify the original value of the construction, and that he had not examined the 1st and 2nd Defendants’ valuation report.
19. DW1, Gideon Muange, a licensed valuer, testified that he was instructed by the 1st and 2nd Defendants to value the Plaintiff’s house. According to his report dated October 29, 2019, compensating the Plaintiff with Kshs. 604,560/= for damages to the house was both just and fair. On cross-examination, he stated that he never recommended a subsequent valuation because the 1st Defendant had been ready to compensate the Plaintiff based on the initial figure.
Analysis of Submissions
Plaintiff’s Submissions
20. The Plaintiff’s case was canvassed through Written Submissions dated 28th July 2025, filed by the firm of Begi’s Law Offices & Chambers. Guided by the equitable maxim ubi jus ibi remedium (equity suffers no wrong without a remedy), Counsel for the Plaintiff submitted that the massive structural cracks and the blasting off of the front part of the Plaintiff's house were a direct consequence of the 1st and 2nd Defendants’ construction of the Standard Gauge Railway (SGR) and their operation of an illegal quarry.
21. The Plaintiff synthesized the dispute into two primary issues for the Court's determination: Whether the Defendants were jointly and severally negligent. Whether the tort of nuisance has been established against the Defendants, jointly and severally.
22. On the first issue, Counsel submitted that the tort of negligence was squarely established against the Defendants. To anchor this argument, the Plaintiff relied on the Supreme Court of Kenya’s decision in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited (Petition 11 of 2015) [2018] KESC 48 (KLR) (Civ), which outlined the four indispensable elements necessary to succeed in a negligence claim: a duty of care, a breach of that duty, causation, and damage.
23. Regarding the Duty of Care, it was the Plaintiff’s contention that the Defendants, particularly the 1st, 2nd, and 3rd Defendants, owed the Plaintiff a statutory and common law duty of care based on the "neighbour principle." The Plaintiff cited the foundational English case of Donoghue v Stevenson (1932) AC 562, whose principles were recaptured by the High Court in Peninah Ndunge Musingila v Trustees of the Catholic Diocese of Machakos & another [2020] KEHC 6422 (KLR). In the Peninah Ndunge case, the Court held that a duty is placed upon a person to take reasonable care to avoid acts or omissions which they can reasonably foresee as likely to injure their neighbour, defined as persons so closely and directly affected by the act that they ought reasonably to be in contemplation. Counsel argued that by operating an illegal quarry and conducting rock blasting a mere 900 meters from the Plaintiff’s home, the Defendants ought to have foreseen the resultant damage.
24. On Breach of Duty, the Plaintiff submitted that the oral testimonies and documentary evidence demonstrated that the 1st, 2nd, and 3rd Defendants failed to take necessary precautions to ensure the Plaintiff's home was unaffected by their drilling and construction activities. Furthermore, the Plaintiff argued that the 4th and 5th Defendants breached their respective duties of care by failing to properly investigate the complaints and compel reparations.
25. Regarding Causation and Damage, Counsel relied on the photographic evidence detailing the extensive ruin of the suit property, alongside an unchallenged valuation report by PW3 (Mr. Peter Kanyugo), which estimated the replacement cost of the entire structure at Kshs. 40,000,000/=. Additionally, Counsel highlighted the testimony of the Plaintiff's wife (PW2, Ms. Shabnam Abdul Sultan) and an accompanying medical report from Cuatro Curafa Clinic, demonstrating the severe psychological trauma and depression she continues to suffer due to the destruction of her home.
26. On the second issue, the Plaintiff submitted that the Defendants' actions constituted the tort of nuisance, severely interfering with the Plaintiff's quiet possession and enjoyment of his land. Counsel averred that the excessive noise, unmitigated air pollution, and severe vibrations from construction machinery rendered the Plaintiff’s home completely uninhabitable and took away his family's quality of life.
27. To substantiate this claim, the Plaintiff placed reliance on the Environment and Land Court decision in Kiarie v Safaricom (K) Limited [2022] KEELC 2904 (KLR), where the Court quoted with approval from Clerk and Lindsell on Torts (7th Edition, p. 1354). The text defines nuisance as an act or omission which is an interference with, disturbance of, or annoyance to a person's rights used or enjoyed with land, particularly when the consequences of a person's actions escape their land to cause physical damage or unduly interfere with a neighbour's use of their land.
28. In conclusion, the Plaintiff urged the Court to find merit in the arguments presented, to recognize the profound loss suffered, and to grant all the prayers sought in the Plaint to ensure the Plaintiff does not suffer for want of a remedy.
1st and 2nd Defendant’s Submissions
29. The 1st and 2nd Defendants’ case was canvassed through Written Submissions dated 30th July 2025, drawn and filed by Sina Law Advocates. The 1st and 2nd Defendants vehemently opposed the Plaintiff's claim, urging the Court to dismiss the suit with costs.
30. They conceptualized the dispute into three main issues for the Court's determination: i) Whether the Plaintiff’s suit is misconceived and bad in law for being premised on an illegality; ii) Whether the Plaintiff has established the torts of negligence and nuisance against the 1st and 2nd Defendants and iii) Whether the Plaintiff is entitled to the reliefs sought.
31. On the first issue, Counsel for the 1st and 2nd Defendants submitted that the Plaintiff's residential structure was erected illegally. They argued that the Plaintiff undertook construction without obtaining the requisite development permissions or occupation permits from the County Government, nor did he possess a valid change of user from agricultural to residential land.
32. To fortify this position, the 1st and 2nd Defendants relied on Section 55 of the Physical and Land Use Planning Act, 2019, which mandatorily requires any person intending to carry out development within a county to obtain development permission. Furthermore, they cited Section 57 of the same Act, which criminalizes developing land without such permission. Under Section 57, an offender is liable upon conviction to a specific penalty of a fine not exceeding Kshs. 500,000, or to imprisonment for a term not exceeding two months, or to both. They additionally invoked Section 30(1) of the repealed Physical Planning Act (Cap 386), under which the structures were likely built, which similarly provided that undertaking development without permission constituted an offence punishable by a fine not exceeding Kshs. 100,000, or an imprisonment term not exceeding five years, or both.
33. Placing reliance on the equitable maxim ex turpi causa non oritur actio (from a dishonourable cause an action does not arise), Counsel submitted that a party cannot seek the Court's protection to benefit from their own illegality. The Defendants cited a litany of authorities to support this, primarily: Satrose Ayuma & 11 Others v Registered Trustees of the Presbyterian Church of East Africa & 3 Others [2011] eKLR, where it was held that a party who creates an illegality cannot seek the aid of the court to enforce a right arising from it; Solomon Mbugua v Attorney General & 2 Others [2013] eKLR, emphasizing that a court of law, being a court of justice, cannot sanction an illegality and Republic vs. National Land Commission & 2 others Ex-Parte Thomas Nzioki & 2 others [2019] eKLR, which reinforced the principle that statutory bodies and courts cannot regularize unlawful land developments.
34. On the second issue, the 1st and 2nd Defendants submitted that they strictly adhered to the National Environment Management Authority (NEMA) regulations and standard construction practices for the Standard Gauge Railway (SGR). They argued that the Plaintiff failed to establish a direct causal link between their blasting activities and the structural cracks on the house, suggesting the damage could have been occasioned by the poor structural integrity of an unapproved building.
35. Counsel relied on Section 107 (1) of the Evidence Act (Cap 80), which enshrines the evidentiary principle that "he who alleges must prove." The Defendants further cited Kiminini Hardwares Limited vs. Kenya Power & Lighting Company Limited [2014] eKLR to assert that the burden of proving negligence lies squarely on the Plaintiff, and that such burden had not been discharged. They critically pointed out that the Plaintiff’s valuer, PW3, only assessed the house after it had been reconstructed, making it impossible to accurately ascertain the direct cause or timing of the alleged structural damage.
36. On the final issue regarding the reliefs sought, the 1st and 2nd Defendants submitted that the Plaintiff's claims for special damages, specifically the expenses incurred in renting alternative accommodation for his children and hospital bills for his wife's (PW2) asthma and anxiety, were not strictly proved.
37. Counsel anchored this argument on the foundational case of Hahn v Singh [1985] KLR 716, which established the strict requirement that special damages must not only be specifically pleaded but also strictly proved. They supplemented this with Capital Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited [2016] eKLR, noting that a claim for special damages must fail if not supported by tangible evidence. The Defendants highlighted the admission by PW2 during cross-examination that she lacked receipts for the repair expenditures or medical reports to verify her health conditions. Consequently, the 1st and 2nd Defendants prayed that the suit be dismissed in its entirety with costs awarded to them.
Issues for Determination
38. Having carefully considered the pleadings, the testimonies of the witnesses, the documentary evidence adduced, and the rival written submissions filed by Counsel for the respective parties, the issues that crystallize for this Court’s determination are as follows:
a. Whether the Plaintiff’s suit is fatally defective and barred by illegality (ex turpi causa non oritur actio) on account of lacking requisite development approvals and change of user.
b. Whether the Defendants owed the Plaintiff a duty of care, and whether they breached that duty.
c. Whether the construction and quarry activities of the 1st and 2nd Defendants constituted an actionable nuisance.
d. Whether the Plaintiff has proved the damages suffered and is entitled to the reliefs sought.
Analysis and Determination
a. Whether the Plaintiff’s suit is fatally defective and barred by illegality (ex turpi causa non oritur actio) on account of lacking requisite development approvals and change of user.
39. This Court is called upon, as a threshold issue, to determine whether the Plaintiff is precluded from seeking legal remedy due to his own failure to obtain statutory development approvals. The 1st and 2nd Defendants have raised a preliminary objection, anchored on the equitable maxim ex turpi causa non oritur actio (from a dishonourable cause an action does not arise), arguing that the suit is incurably defective because the destroyed residential structure was erected illegally.
40. The factual matrix surrounding this issue is largely uncontested. During cross-examination, PW1 (the Plaintiff) made a candid admission to this Court. While he maintains that he owns the parcel of land (L.R. KAJIADO/KITENGELA/26501) under a freehold title, he explicitly conceded that he possessed neither architectural designs nor approved construction plans from the County Government. Furthermore, no evidence was tendered to demonstrate a formal change of user from agricultural to residential purposes.
41. The statutory framework governing land development in Kenya is unambiguous. Given that the Plaintiff testified to having lived on the property for over eight years, the operative law at the time of construction was the now-repealed Physical Planning Act (Cap 386). Section 30(1) of the Act rigidly stipulated development controls, stating:
"No person shall carry out development within the area of a local authority without a development permission granted by the local authority under section 33." Furthermore, Section 30(1) prescribed specific penalties for contravention: "Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable to a fine not exceeding one hundred thousand shillings or to an imprisonment not exceeding five years or to both."
40. This strict regulatory regime was transitioned and amplified in the current Physical and Land Use Planning Act, 2019. The 1st and 2nd Defendants correctly placed reliance on Section 55 of the Act, which provides:
"A person shall not carry out development within a county without a development permission granted by the respective county executive committee member." The punitive consequences for ignoring this mandate are detailed in Section 57(1) and (2) the Act, which state: "(1) A person who commences any development without obtaining development permission commits an offence. (2) A person convicted of an offence under this section shall be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two months or to both."
41. To buttress their defence, Counsel for the 1st and 2nd Defendants cited robust jurisprudence holding that courts will not lend their aid to a party founding their cause of action upon an immoral or illegal act. In Satrose Ayuma & 11 Others v Registered Trustees of the Presbyterian Church of East Africa & 3 Others [2011] eKLR, it was firmly held that a party who creates an illegality cannot seek the aid of the court to enforce a right arising from it. Similarly, in Solomon Mbugua v Attorney General & 2 Others [2013] eKLR, the Court emphasized that a court of law, being a court of justice, cannot sanction an illegality. This was further echoed in Republic vs. National Land Commission & 2 others Ex-Parte Thomas Nzioki & 2 others [2019] eKLR, which reinforced that statutory bodies and courts cannot regularize unlawful land developments.
42. I have carefully evaluated the Defendants’ reliance on the ex turpi causa maxim against the established facts and the aforementioned statutory provisions. It is incontrovertible that the Plaintiff committed a statutory infraction by constructing his residence without the requisite approvals from the County Government (the 5th Defendant). By doing so, he exposed himself to the specific penal consequences outlined in Cap 386 and the Physical and Land Use Planning Act, 2019—namely, substantial fines and potential imprisonment.
43. However, the critical legal question is whether this statutory breach acts as an absolute bar to a tortious claim against a third party. The application of ex turpi causa requires a direct causal nexus between the illegal act and the loss suffered. The Plaintiff’s cause of action does not arise from his failure to obtain a building permit; rather, it arises from the 1st and 2nd Defendants’ alleged independent tortious acts of negligent rock blasting and nuisance.
44. The duty of care not to recklessly destroy a neighbour's property, and the obligation not to commit a nuisance, are owed to the person and their property irrespective of the property's compliance with municipal zoning laws. To hold otherwise would lead to an absurd and legally untenable position where any private entity could trespass upon, vandalize, or destroy an unapproved structure with absolute impunity, shielding themselves behind the owner's municipal non-compliance. The jurisdiction to penalize the Plaintiff for lacking building approvals lies exclusively with the State and the County Government through the specific statutory penalties cited above, not through the extra-judicial destruction of his property by private contractors.
45. In conclusion, the fact that the Plaintiff built his house without the required permits does not cancel out his claims of negligence and nuisance against the Defendants. The lawsuit is valid, and the 1st and 2nd Defendants’ request to dismiss the case on these grounds is denied.
b. Whether the Defendants owed the Plaintiff a duty of care, and whether they breached that duty.
42. Having dispensed with the preliminary issue of illegality, the Court must now determine whether the tort of negligence has been established. As correctly submitted by the Plaintiff, the foundational framework for proving negligence was succinctly laid out by the Supreme Court of Kenya in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited (Petition 11 of 2015) [2018] KESC 48 (KLR) (Civ). To succeed, a plaintiff must prove on a balance of probabilities four indispensable elements: the existence of a duty of care, a breach of that duty, a causal connection between the breach and the injury, and actual damage or loss.
43. The primary inquiry is whether the 1st, 2nd, and 3rd Defendants owed the Plaintiff a duty of care. This Court is guided by the venerable "neighbour principle" first enunciated in the English case of Donoghue v Stevenson (1932) AC 562, and firmly entrenched in our jurisprudence, as cited by the Plaintiff in Peninah Ndunge Musingila v Trustees of the Catholic Diocese of Machakos & another [2020] KEHC 6422 (KLR). The principle dictates that one must take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure their neighbour—defined as persons so closely and directly affected by the act that they ought reasonably to be in contemplation.
44. Applying this principle to the present facts, the 1st and 2nd Defendants were engaged in large-scale infrastructural construction and commercial rock blasting at a quarry situated a mere 900 meters from the Plaintiff’s residential property. It is beyond peradventure that earthworks and rock blasting utilizing heavy machinery generate massive vibrations and particulate pollution. Any reasonable contractor ought to foresee that residential structures within a 900-meter radius are susceptible to structural damage from such activities. Consequently, I find that the 1st and 2nd Defendants owed a direct common law duty of care to the Plaintiff to execute their works in a manner that mitigated such foreseeable harm.
45. Furthermore, the 4th Defendant (NEMA) and 5th Defendant (County Government of Kajiado) as the bodies constitutionally and statutorily mandated to oversee environmental safety and local development, had a duty to investigate grievances regarding hazardous commercial activities. The Plaintiff testified that he formally notified the 4th and 5th Defendants of the illegal quarry and the resultant destruction via letters, which were inexplicably ignored. Their failure to intervene or respond constitutes a clear dereliction of their statutory oversight duties.
46. The next inquiry is whether there was a breach of this duty. The 1st and 2nd Defendants vehemently denied negligence, contending that they complied with all NEMA regulations. Relying on Section 107 (1) of the Evidence Act (Cap 80), which 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," and the holding in Kiminini Hardwares Limited vs. Kenya Power & Lighting Company Limited [2014] eKLR, the Defendants submitted that the Plaintiff failed to discharge the burden of proving negligence. They argued that the Plaintiff’s valuer (PW3) only assessed the house after reconstruction, thereby failing to prove causation.
47. While it is trite law that he who alleges must prove, this Court cannot ignore the glaring contradictions in the 1st and 2nd Defendants' case. The Defendants’ assertion that their activities caused no actionable damage is fundamentally fatally undermined by their own conduct and evidence. DW1, Mr. Gideon Muange, a licensed valuer called by the defence, testified that he was specifically instructed by the 1st and 2nd Defendants to value the Plaintiff's house. Based on his report dated 29th October 2019, DW1 recommended compensating the Plaintiff with Kshs. 604,560/= was "just and fair," and further testified that the 1st Defendant was ready to compensate the Plaintiff.
48. The act of commissioning a valuer and making an offer of compensation for damages is entirely inconsistent with a defense of absolute compliance and zero impact. It constitutes an implicit admission by the 1st and 2nd Defendants that their blasting operations did, in fact, negatively impact the Plaintiff's property. The 1st and 2nd Defendants breached their duty of care by failing to deploy adequate dampening technologies, failing to consult the local residents prior to commencement, and proceeding with operations that physically cracked and damaged the Plaintiff's home.
49. Consequently, I am satisfied that the Plaintiff has successfully discharged the burden of proof. I find and hold that the 1st and 2nd Defendants owed the Plaintiff a duty of care, which they breached through their negligent quarrying and construction activities, directly resulting in structural damage to the Plaintiff's property. Similarly, the 4th and 5th Defendants breached their statutory duties of care through their negligent omission to act upon the Plaintiff's formal complaints.
c. Whether the construction and quarry activities of the 1st and 2nd Defendants constituted an actionable nuisance.
50. Having established liability in negligence, the Court now turns to the alternative, yet concurrently pleaded, claim of nuisance. The issue for determination is whether the rock blasting, earthworks, and operation of heavy machinery by the 1st and 2nd Defendants generated excessive noise, vibrations, and dust pollution that amounted to an actionable private nuisance against the Plaintiff.
51. The legal parameters of what constitutes a nuisance are well settled in our jurisdiction. The Plaintiff’s Counsel aptly drew the Court's attention to the Environment and Land Court decision in Kiarie v Safaricom (K) Limited [2022] KEELC 2904 (KLR). In that case, the Court quoted with approval the authoritative definition provided in Clerk and Lindsell on Torts, defining nuisance as:
"An act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of... his ownership or occupation of land or of some easement, quasi-easement, or other right used or enjoyed in connection with land, when it is a private nuisance."
56. The essence of the tort of private nuisance is the protection of a landowner's or occupier's right to the quiet, undisturbed, and comfortable enjoyment of their property. To be actionable, the interference must be substantial and unreasonable. The Court must balance the right of the Defendants to execute their infrastructural and commercial activities against the right of the Plaintiff to the peaceful enjoyment of his home.
57. The evidentiary record before this Court paints a grim picture of the Plaintiff's living conditions during the construction of the Standard Gauge Railway. PW1 testified that continuous rock blasting occurred both during the day and at night just 900 meters from his residence. This resulted in massive vibrations that physically cracked the walls of his house. Furthermore, both PW1 and PW2 testified to the unmitigated air pollution caused by dust from the excavation and speeding transportation trucks, which not only coated their home but exposed the household to respiratory distress, including asthma and severe anxiety. The interference was so profound that the Plaintiff was forced into the indignity of relocating his family, moving his older children into a rented house and temporarily residing with his sister-in-law to escape the uninhabitable environment.
58. In rebuttal, the 1st and 2nd Defendants mounted a defense of statutory compliance, asserting that their activities adhered to standard construction practices and National Environment Management Authority (NEMA) regulations. They further relied on Section 107 (1) of the Evidence Act (Cap 80), which mandates 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."
The Defendants argued that the Plaintiff failed to scientifically or strictly prove that their specific activities crossed the threshold of actionable nuisance, suggesting the structural failure was due to the building's unapproved status.
59. I am not persuaded by the Defendants' assertions. While the construction of the SGR is a project of immense national utility sanctioned by the Government, statutory authority to construct a railway does not confer a blanket immunity to commit a nuisance. Contractors are obligated to execute their mandate without inflicting unnecessary or unreasonable harm on adjacent landowners. The defense that the noise and dust were merely temporary inconveniences intrinsic to construction cannot hold where the interference is so severe that it causes structural collapse, as testified by PW2, who stated debris fell on her, and forced a family to abandon their homestead.
60. Furthermore, as previously observed in the analysis of negligence, the Defendants' attempt to deny the impact of their activities is defeated by their own conduct. By dispatching DW1 (a licensed valuer) to assess the damage to the Plaintiff's house and proposing a compensation sum of Kshs. 604,560/=, the 1st and 2nd Defendants tacitly acknowledged that their operations had "escaped" their site and tangibly interfered with the Plaintiff's property rights.
61. No person should be compelled to endure ceaseless nocturnal rock blasting, structural tremors, and pervasive dust in their own home. Such conditions transcend the ordinary "give and take" expected of neighbors. They are a violation of the right to a clean and healthy environment. Consequently, I find and hold that the continuous, unmitigated quarrying and construction activities by the 1st and 2nd Defendants severely and unreasonably interfered with the Plaintiff’s quiet enjoyment of his property. The Plaintiff has successfully established the tort of private nuisance against the 1st and 2nd Defendants.
d. Whether the Plaintiff is entitled to the reliefs sought.
62. Having found the 1st and 2nd Defendants liable for both negligence and nuisance, the final substantive issue is the quantification of damages and the determination of the reliefs to which the Plaintiff is entitled. The Plaintiff seeks special damages, general damages for the destruction of his house, damages for nuisance, aggravated and exemplary damages, and a mandatory injunction.
63. The Plaintiff prayed for special damages encompassing expenses incurred in renting alternative accommodation for his children and hospital bills resulting from asthma attacks and anxiety suffered by his family. The law regarding special damages is deeply entrenched in our jurisprudence. They must be specifically pleaded and strictly proved. The 1st and 2nd Defendants correctly guided the Court to the locus classicus on this subject, Hahn v Singh [1985] KLR 716, where the Court of Appeal emphatically stated:
"Special damages must not only be specifically pleaded but also strictly proved... for a plaintiff to succeed in a claim for special damages, he must show that he has suffered the specific loss and must quantify it in monetary terms."
64. The Defendants further buttressed this with Capital Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited [2016] eKLR, noting that a claim for special damages must fail if not supported by tangible evidence. Applying these principles to the evidentiary record, the Plaintiff's claim for special damages collapses entirely.
65. During cross-examination, PW2 (the Plaintiff's wife) candidly admitted that she possessed no receipts to demonstrate the expenditure incurred in reopening or renting the house, nor did she tender any medical reports to confirm the alleged asthma and anxiety conditions. While the Plaintiff’s submissions casually referenced a medical report from "Cuatro Curafa Clinic," submissions cannot substitute or cure the lack of evidentiary proof on the stand. Consequently, the claim for special damages is not proved and is hereby dismissed.
66. The Plaintiff sought Kshs. 30,000,000/= (and later relied on a Kshs. 40,000,000/= valuation) as reparation for the destruction of his house. The Court is presented with two diametrically opposed valuation reports. PW3 (Mr. Peter Wakahara) valued the property at Kshs. 40 Million. Conversely, DW1 (Mr. Gideon Muange), instructed by the Defendants, assessed the damages at Kshs. 604,560/=.
66. I have critically evaluated both reports. PW3’s valuation suffers from a fatal evidentiary flaw: he admitted under cross-examination that he inspected and valued the property on 24th November 2023, after it had already been reconstructed. I emphasize that the witness valued the house as it were and not the damage caused by the activities of the 1st and 2nd Defendants as pleaded by the Plaintiff. He could not ascertain the extent of the damage at the time it occurred, nor did he provide the original construction value. Damages in tort are meant to restore the plaintiff to the position they were in before the tort occurred (restitutio in integrum), not to fund an upgraded reconstruction.
67. On the other hand, DW1’s contemporaneous report dated 29th October 2019 assessed the actual damage caused by the blasting at Kshs. 604,560/=. While the Plaintiff rejected this as unilaterally determined and overly conservative, he failed to provide a contemporaneous, independent assessment of the structural damage to rebut it. In the absence of strict proof of the Kshs. 40 Million replacement value, and taking into account the unapproved status of the original structure, the Court adopts DW1’s assessment as the most reliable baseline for the physical property damage. I therefore award the Plaintiff the sum of Kshs. 604,560/= as compensation for the physical destruction of the property. For the inconveniences caused and loss of enjoyment of his property during the construction, I award the Plaintiff general damages of Kshs. 2,000,000/- in addition to the sum of Kshs. 604,560/= compensation.
68. Nuisance is actionable per se upon proof of substantial interference. The Plaintiff and his family were subjected to harrowing conditions—unrelenting noise, tremors that brought down portions of their walls, and dust that forced them out of their home into tents and alternative dwellings. The 1st and 2nd Defendants acted with a degree of high-handedness by setting up a quarry without community consultation and proceeding with blasting operations in flagrant disregard of the Plaintiff’s protests.
69. I am satisfied that this warrants an award of general damages for nuisance, coupled with a modest award for aggravated damages to compensate for the emotional distress and severe inconvenience inflicted upon the Plaintiff and the violation of the Plaintiff’s right to a clean and healthy environment. Doing the best I can with the evidence before me, I award the Plaintiff a global sum of Kshs. 3,00,000/= as general damages for the tort of nuisance and Kshs.1,000,000/= as aggravated damages for the emotional distress and severe inconvenience inflicted upon the Plaintiff and his family and the violation of the Plaintiff’s right to a clean and healthy environment.
70. The Plaintiff also prayed for exemplary damages. Exemplary damages are punitive in nature and are typically reserved for oppressive, arbitrary, or unconstitutional actions by government servants, or where a defendant's conduct was calculated to make a profit exceeding the compensation payable. The threshold for exemplary damages has not been met here, and this prayer is declined.
71. The Plaintiff sought a declaration that the 1st Defendant’s method of excavating rocks was illegal and infringed on his right to a clean and healthy environment. Given the findings on negligence and nuisance, the Plaintiff is entitled to this declaratory relief. However, the prayer for a mandatory injunction to compel compensation is superfluous, as it is subsumed in the monetary decree of this Court.
72. In the final analysis, I enter Judgement in favor of the Plaintiff against the 1st and 2nd Defendants, jointly and severally, in the following terms:
a) A Declaration is hereby issued that the 1st and 2nd Defendants’ rock-blasting and quarrying activities within a 900-meter radius of the Plaintiff’s residential house on L.R. KAJIADO/KITENGELA/26501 constituted an actionable nuisance and a breach of their duty of care.
b) Compensation for the physical destruction of the Plaintiff’s house is awarded in the sum of Kshs. 604,560/=.
c) General damages for the inconveniences and loss of enjoyment of his property during the construction of Kshs. 2,000,000/=
d) General for the tort of nuisance of Kshs. 3,000,000/=.
e) Aggravated damages for the emotional distress and severe inconvenience inflicted upon the Plaintiff and his family and the violation of the Plaintiff’s right to a clean and healthy environment of Kshs. 1,000,000/=.
f) The total monetary award of Kshs. 6,604,560/= shall attract interest at court rates from the date of this Judgement until payment in full.
g) The Plaintiff's claims for special damages and exemplary damages are hereby dismissed.
h) As costs follow the event, the 1st and 2nd Defendants shall jointly and severally bear the costs of this suit.
Orders accordingly.
Dated, Signed and Delivered Virtually this 21st Day of May, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
N/A by the Parties
Court Assistant: Alex
M.D. MWANGI
JUDGE