(1) PLEADINGS
(a) Plaint
Shadrack Kipkorir Maru, Jane Wanjiru Njenga, Charles Magati Maranga, Margaret Nyambura Wanja, Jane Nyambeki Maranga and Twairi Mauda Juma (herein referred as Plaintiffs) filed a suit against Effective Construction Ltd herein referred to as Defendants seeking the following orders namely:-
a. An order of permanent injunction barring the Defendants/Respondents, their agents, employees, contractors, servants and/or whomsoever acting on their behalf from developing and/or carrying out any construction works of the Mbugua Mbugua Road and Drainage until a fresh, extensive and informative Environment Impact Assessment exercise is carried out and a report filed in court.
b. An order directing the 2nd Interested Party herein to issue directions as to how the adverse effects suffered by the Plaintiffs and their properties can be mitigated.
c. General damages for distress, pain and suffering for the 1st, 2nd, 3rd, 4th 5th and 6th Plaintiffs.
d. An award of aggravated damages for the gravity of the loss and damage suffered by the 1st, 2nd, 3rd, 4th 5th and 6th Plaintiffs.
e. Special damages amounting to Kshs145,768.00 and as pleaded at paragraph 28 of this plaint.
f. Costs of this suit and interest at court rates.
g. Any other or further award that the court may deem fit to grant; and
h. Any other or further relief as this Honourable Court may deem fit and just to grant.
The plaintiff complaint is that at all material times, the 2nd Plaintiff was and is the registered proprietor of the land parcel known as Nakuru Municipality Block 1/1227 located in Nakuru County and measuring approximately 0.0294 whereas the 5th Plaintiff was and is the registered proprietor of the land parcel known as Nakuru Municipality Block 1/1226 located in Nakuru County and measuring approximately 0.0295 hectares. The 1st, 3rd, 4th and 6th plaintiffs were and still are tenants on the residential buildings erected on land parcel no. Nakuru Municipality Block 1/1226 belonging to the 5th Plaintiff. The defendants by themselves, their agents and/or employees, jointly and severally, were and still are undertaking construction of the Mbugua Mbugua Road and Drainage located adjacent to land parcels No. Nakuru Municipality Block 1/1227 and Nakuru Municipality Block 1/1226 [hereinafter referred to as “suit properties”] belonging to the 2nd and 5th plaintiffs, respectively.
According to the plaintiffs, the defendants were under the common law obligation established by the rule in the case of Ryland v Fletcher [1868] UKHL 1, to ensure that the said construction of the Mbugua Mbugua Road and Drainage would not interfere with the plaintiffs’’ use of the suit properties, wherein they reside.
On or about 17th August 2023, while undertaking construction of the Mbugua Mbugua Road and Drainage, the defendants by themselves, their agents and/or employees wrongfully and unlawfully caused blockage of the drainage system available on the suit properties, causing rain water mixed with sewage to flood into the residential buildings erected therein, as a result of which the Plaintiffs herein suffered serious sanitary hazards and sustained substantial loss and damage to their properties.
The plaintiffs aver that the defendants commenced construction of the Mbugua Mbugua Road and Drainage or about the 9th of January 2023, but, in so doing, refused and/or failed and/or neglected to construct a specific drainage system for purposes of draining water flowing from and rain water at the construction site. This, in turn, forced the water flowing from and rain water at the construction site to, on top if the water flowing from and rain water at the residential buildings on the suit properties, also pass through the drainage and sewerage systems available on the suit properties, thereby causing their blockage.
The plaintiffs aver that the drainage and sewerage systems available on the suit properties were, particularly, designed to service waste water flowing from and rain water at the residential buildings on the suit properties and no more. Accordingly, the large quantities of water flowing from and rain water at the constraction site levied intense pressure on the drainage and sewerage systems available on the suit properties, interfering with their ability to pass water and causing them to block.
The plaintiffs aver that had the defendants prioritized the construction of a drainage system through which water flowing from and rain water at the construction site would pass off, the drainage and sewerage systems available on the suit properties would have never experienced blockage and accordingly, rain water would have never flooded into the suit properties, occasioning the plaintiffs great loss and damage to their person and property.
The plaintiff aver that that prior to the defendants/respondents’ construction activities of the Mbugua Mbugua Road and Drainage, neither had rain water flooded the suit properties nor caused blockage of the drainage and sewerage systems available on the suit properties.
Accordingly, the blockage of the drainage and sewerage systems available on the suit properties was not occasioned by the act of God but in fact, by the failure by the Defendants by themselves, their agents and/or employees to take precautionary measures to ensure that water flowing from and rain water at the construction site would not cause damage to the drainage and sewerage systems available on the adjacent properties.
The Plaintiffs aver that owing to the close proximity of the construction site to the suit properties, the Defendants owed a duty of care, which duty they breached, to take such care, as in all circumstances of the case, is reasonable to ensure that the Plaintiffs’’ properties would be adequately shielded from all evils arising their construction activities. The Plaintiff aver that as a consequence of the Defendants’ breach of duty of care, which is negligence, the Plaintiffs were exposed to grave health risks and sustained substantial loss and damage to their properties.
(b) Defence
In her defence the 1st Defendant states that even if the Plaintiffs allegations were true, which is denied, the construction of the road has to start with the earth works: clearance and culverts first. The 1st Defendant avers that the Plaintiffs are raising issues to do with sewerage which was never a mandate of the 1st Defendant. Sewerage systems are built by the respective Water works and/or sewerage agency who have not been included as a party in this suit.
The 1st Defendant avers that if at all there were any complaints in respect of the sewerage system, the same ought to be directed to the respective Water and Sewerage Agency and/or by registering a complaint in that regard with the said Water & Sewerage Agency. The 1st Defendant does not have the capacity to determine the flow of rain water. If at all the Plaintiffs assets and/or properties were damaged by flowing rain water, the same can be attributed to as an act of God for which the 1st Defendant cannot be held accountable and/or responsible for the same.
The 1st Defendant further avers that the Plaintiffs have not availed an independent expert report to substantiate their allegations of the Plaint and states that vide a report on the construction of the road referred to herein dated 28th August, 2023 it is clear from the said report that there has been a history of and/or persistent flooding in the said area thus necessitating the expansion of the road and/or drainage infrastructure as found at page 2 of the report. The flooding is a pure act of God that neither of the parties herein can be held responsible for.
The construction of the disputed road herein was done in the best interest and for the public good. It was meant to benefit the residents of Nakuru County and thus there may be inconveniences that the Plaintiffs will have to bear with for the road to be passable and the persistent flooding be dealt with once and for all.
The defendant contends that an Environmental Impact Assessment Report was done for the said road. The stakeholders, the plaintiffs being amongst them, were ably consulted whilst the report was being prepared.
The time the injunction orders were issued herein, the construction of the said road had been completed and thus any injunction orders as sought in the Plaint by the plaintiffs was issued in vain as the cause of action has been overtaken by events. The 1st Defendant avers that the Plaintiffs suit herein is hopeless and incompetent, it raises no plausible cause of action, the suit herein is thus vexatious, frivolous and a waste of the precious judicial time.
EVIDENCE ON RECORD
(a) Plaintiffs Case
When the matter came up for hearing, Shadrack Kipkorir Maru [PW1] adopted his witness statement and further testified that the 2nd and 5th Defendants are the registered owners of properties numbers Nakuru Municipality Block 1/1227 and Nakuru Municipality Block 1/1226 respectively, the 1st, 3rd and 4th plaintiffs are tenants in the properties. That on or about 17th August, 2023, while undertaking construction of the Mbugua Mbugua Road and Drainage, the Defendants by themselves, their agents and/or employees wrongfully and unlawfully caused blockage of the drainage system available on the suit properties, causing rain water mixed with sewage to flood into the residential buildings erected thereon, as a result of which the Plaintiffs herein suffered serious sanitary hazards and sustained substantial loss and damage to their properties, Photographic and video graphic evidence of the said flooding is attached in a bundle to the Plaintiffs ' List of Documents and marked as "annexure 4".
The flooding was occasioned by the Defendants' failure to construct a specific drainage system for purposes of draining water flowing from and rain water at the construction site. This, in turn, forced the water flowing from and rain water at the construction site to, on top of the water flowing from and rain water at the residential buildings on the suit properties, also pass through the drainage and sewerage systems available on the suit properties, thereby causing their blockage.
The drainage and sewerage systems available on the suit properties were, particularly, designed to service waste water flowing from and rain water at the residential buildings on the suit properties and no more. Accordingly, the large quantities of water flowing from and rain water at the construction site levied intense pressure on the drainage and sewerage systems available on the suit properties, interfering with their ability to pass water and causing them to block. The witness states that had the Defendants prioritized the construction of a drainage system through which water flowing from and rain water at the construction site would pass off, the drainage and sewerage systems available on the suit properties would have never experienced blockage and accordingly, rain water would have never flooded into the suit properties, occasioning the Plaintiffs great loss and damage to their person and property.
According to the plaintiff, the blockage of the drainage and sewerage systems available on the suit properties was not occasioned by an Act of God but in fact, by the failure by the Defendants by themselves, their agents and/or employees to take precautionary measures to ensure that water flowing from the construction site would not cause damage to the drainage system available on the adjacent properties. Prior to the Defendants' construction activities, neither had rain water flooded the suit properties nor caused blockage of the drainage system available on the suit properties. Owing to the close proximity of the construction site to the suit properties, the Defendants owed a duty of care, which duty they breached, to take such care, as in all circumstances of the case, is reasonable to ensure that the Plaintiffs' properties would be adequately shielded from all evils arising their construction activities. The witness is not aware of any Environmental Impact Assessment undertaken by the Defendants with regards to the construction of the Mbugua Mbugua Road and Drainage as my views were never taken into consideration before the commencement of the said construction.
That upon demanding for compensation for the loss and damage sustained on our properties, the Defendants gave out food to the residents occupying the residential located on the suit properties.
The food handouts by the Defendants do not adequately and wholly compensate the Plaintiffs for the loss and damage occasioned to their properties, as a direct consequence of the Defendants' actions.
(b) Defence Case.
The defence called 3 witnesses, DW1 Peter Mari Njuguna Operations manager of the 1ST Defendant, testified that the Defendant was contracted to undertake drainage works on a section of Baringo road under the project name "Mbugua Mbugua road and drainage works". It was a section of the road that had experienced a flooding menace overtime. The drainage works were hence meant to clear the water path and save the residents from floods and the rain water accessing their homesteads. As they undertook the works, diversion of the rain water was key and as they sunk and dug the trenches, they expected any rain water to find its pathway through the drainage into Lake Nakuru National Park. Rain water is an act of God. The 1st defendant could not have any control on the repercussions of the same. Their work was simply to assist the residents of the said area from the flood water menace and which they did. Currently no floods have been experienced since. All the requisite approvals were undertaken and approved as per the 1st defendant's list of documents.
DW2 Benson Waweru Njuguna, a Kenyan adult of sound mind residing and working for gain in Nakuru town within Nakuru County testified that that he is a resident of Race-Course estate within Nakuru town. He knows the plaintiffs who are his immediate neighbors. He is the registered owner of NAKURU MUNICIPALITY BLOCK 1/1207 where he has resided for nearly 30 years now with his family. He lives along Baringo road which connects to other estates being Langalanga, Mwariki and the Nakuru Game Park. The said Baringo road is the boundary of Race-Course and Langalanga estate which is in Nakuru East and Mwariki estates which is in Nakuru West.
For the entire period he has been a resident there, flooding has been a perennial challenge whenever it rains. When it rained they could not gain access to their homes as the road would flood and thus be impassable.
According to DW1, in the month of August, 2023, the County Government of Nakuru decided to undertake drainage works on the part section of the Baringo road of about 300metres where flood waters would converge. The areas where the witness and the plaintiffs live is on the sloppy end of the road and when it rains, the flood water would find a resting place thus the homesteads around the area would be flooded and they could not access them. Though the project name is "Mbugua Mbugua road and drainage works", the road itself is called Baringo road. After the said construction of the drainage works and tarmacking of the part section of the said road, the perennial flooding ended. He now lives in peace without ever having to worry of flooding when it rains and/or access to his home.
DW3, Stephen Njoroge Gitau, a Kenyan adult of sound mind residing and working for gain in Nakuru town within Nakuru County and a resident of Race-Course estate within Nakuru town testified that he knows the plaintiffs as his immediate neighbours. He is the registered owner of NAKURU MUNICIPALITY BLOCK 1/1206 where he has resided for more than 34years with his family. He lives along Baringo road which connects to other estates being Langalanga, Mwariki and the Nakuru Game Park. The said Baringo road is the boundary of Race-Course and Langalanga estate which is in Nakuru East and Mwariki estates which is in Nakuru West.
For the entire period he has lived there, flooding has been a menace wherever it rained. They could not access their homes as the road would turn impassable. They used to wait until the water subsides to enable them access their homes. It was later in the month of August, 2023 the County Government of Nakuru decided to construct the drainage on the part section of the Baringo road of about 300 metres. The Plaintiffs and witness live within this radius.
The area where they live is on the sloppy end of both sides of the road and whenever it rains, the flood water would find a resting place thus the homesteads around the area would be flooded and they thus could not gain access to their homesteads. The project name is "Mbugua Mbugua road and drainage works", the road itself is called Baringo road. After the said construction of the drainage works and tarmacking of the said road, the perennial flooding menace ended. They now live in peace without ever having to worry of flooding when it rains. The construction and/or rehabilitation of the section of the road was quite a relief.
The flooding of August, 2023 was not unique in any way. The flooding was an act of God and having lived there for the period, they all are aware of the dangers and would be prepared every time it rained in seeking alternative accommodation until the waters subside. That public participation was conducted to notify the household units neighboring the construction zone of the impeding construction works to enable them prepare the same.
RIVAL SUBMISSIONS
(a) Plaintiffs Submissions.
Counsel for the Plaintiff filed submissions dated 5th January 2026 and identified the following issues for determination:
a. Whether the Plaintiffs have met the legal threshold for a claim on negligence?
b. Whether the Plaintiffs have met the legal threshold for grant of a permanent injunction against the Defendants and all other persons acting on their instructions from carrying out any construction works of the Mbugua Mbugua Road and Drainage until a fresh, extensive and informative Environmental Impact Assessment exercise is carried out and a Report filed in Court?
c. Whether the Plaintiffs have met the legal threshold for issuance of an order directing the 2nd Interested Party herein to issue directions as to how the adverse effects suffered by the Plaintiffs and their properties can be mitigated?
d. What amount in terms of general damages for distress, pain and suffering are the Plaintiffs entitled to?
e. Whether the Plaintiffs are entitled to aggravated damage for the gravity of the loss and damage suffered?
f. What amount in terms of aggravated damages are the Plaintiffs entitled to?
g. Whether the Plaintiffs are entitled to special damages amounting to Kshs 145,768.00/=?
h. Whether the Plaintiffs have discharged both their legal burden of proof and evidentiary burden?
i. What is the law relating to uncontroverted evidence and analysis of evidence?
j. Who should bear the costs of the suit?
On the first issue, counsel submitted that the Defendants owed a clear duty of care to the Plaintiff’s and to the land in which they reside which was breached under Section 3 (1) and 87 of EMCA. Counsel submitted that there is a direct causal connection between the Defendant’s negligent conduct and the damage suffered by the Plaintiffs which has been established. Counsel submitted that the damage suffered by the Plaintiffs was foreseeable and natural consequence of the Defendants acts and omissions was not too remote. Reliance was placed on the case of Barnett vs Chelsea and Kensington Hospital Management Committee (1969).
On the second issue, counsel submitted that the Plaintiffs have established a clear legal and constitutional basis for the grant of a permanent injunction. Counsel relied on Article 10 (2) (a) of the Constitution of Kenya, Section 58 and 59 of the Environmental Management and Coordination Act and the case of Kenya Power & Lighting Co. Ltd vs Sheriff Molana Habib [2018] eKLR.
On the third issue, counsel submitted that the Plaintiffs have satisfied the legal threshold for an order compelling the 2nd Interested Party to issue directions mitigating the adverse effects suffered by the Plaintiffs and their properties. Reliance was placed on Sections 9 (2) (h) and 9 (2) (k) of the Environmental Management and Co-ordination Act and the case of Republic vs Kenya National Examinations Council ex parte Gathenji & 9 others [1997] eKLR.
On the fourth issue, counsel submitted that taking into account the current inflation percentages and the fact that the damage was occasioned to two parcels of land, an amount of Ksh 7,000,000/= is sufficient as general damages for the Plaintiffs jointly. Counsel relied on the following cases: Stanley Maore vs Geoffrey Mwenda [2004] eKLR, Alphonce Odero Augo vs Sinohydro Corporation Limited [2017] eKLR, Mwangi vs China Road and Bridge Corporation [2022] KEELC 15096 (KLR) and Aberdare Investments Limited vs Kenya National Highways Authority & 4 others [2024] KEELC 4419 (KLR).
On the fifth issue, counsel submitted that the Plaintiffs are entitled to aggravated damage for the gravity of the loss and damage suffered. Counsel relied on the case of Miguna Miguna vs Standard Group Limited & 4 others [2017] eKLR.
On the sixth issue, counsel submitted that the aggravated damages to the total tune of Ksh 6,000,000/= being Ksh 1,000,000/= for each party would be sufficient. Counsel relied on the case of The Nairobi Star Publication Limited vs Elizabeth Atieno Oyoo [2018] eKLR. On the seventh issue, counsel submitted that the Plaintiffs are entitled to special damages amounting to Ksh 145,768.00/=. Reliance was placed on cases of Hahn vs Singh (1985) eKLR and Kenya Power & Lighting Company Ltd vs James Muli Kyalo & another [2020] eKLR.
On the eighth issue, counsel submitted that the Plaintiffs have discharged both their legal and evidentiary burden of proof. Counsel relied on Section 107 (1) of the Evidence Act and the following cases: Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, Kanyungu Njogu vs Daniel Kimani Maingi [2000] eKLR, William Kabogo Gitau vs George Thuo & 2 others [2010] 1 KLR 526 and Palace Investment Ltd vs Geoffrey Kariuki Mwenda & Another (2015) eKLR.
On the ninth issue, counsel submitted that the defence witnesses’ inability to rebut the Plaintiffs’ evidence on causation, foreseeability and damage leaves the Plaintiff’s case substantially unchallenged on material particulars. Counsel relied on the case of Janet Kaphiphe Ouma & Another vs Marie Stopes International (Kenya) HCCC No 68 of 2007. On the tenth issue, counsel submitted that the Plaintiffs are entitled to costs of the suit as it is merited.
(b) 1st Defendant’s Submissions
Counsel for the 1st Defendant filed submissions dated 19th January, 2026. It was counsel’s submissions that the photographs produced by the Plaintiff show water on their alleged property and nothing more. Counsel submitted that the source of water is not demonstrated although they claim the same was channeled to their properties by the defendants. Counsel submitted that the Plaintiff’s witnesses were not expert in field of civil or construction engineering. Counsel submitted that no scientific expert reports were produced attributing any negligence on the part of the defendants, its agents, servants or employees.
It was counsel’s submission that no independent witness was called such as a resident engineer of the County or the National Government who had designed, supervised and or approved the construction works. Counsel submitted that there was no expert report produced by the Plaintiff to rule out the possibility of any other causes for the loss or damage or damage to the Plaintiff’s investment on the land.
Counsel went on to submit that the basis upon which the Plaintiff held the view that there was poor workmanship and or non-alignment with the natural course of the water flow is a layman’s guess lacking any backing from an expert report and the law. Reliance was placed on the following cases: Kinyua (Suing on his behalf & as the legal representative of the Estate of his late brother Edward P. Gitonga Nkari Deceased) vs Intex Construction Company Ltd (Environment Land Case 43 of 2018) 2023 KEELC 20398 and Guyo vs Kenya Electricity Generating Company PLC (KENGEN) National Assembly (Interested Party) (Environment Land Petition 4 of 2022) 2025 KEELC (KLR).
Counsel submitted that the Plaintiff’s suit is frivolous and is ripe for dismissal.
ANALYISIS AND DETERMINATION
This dispute revolves on the flooding menace in Nakuru City between the years 2022 and 2023. According to a report by the County Government of Nakuru, flooding has been synonymous with Nakuru City due to the terrain of the town slope downwards from Menengai Crater to Lake Nakuru and storm water drain to the lake. The increased built up space has increased the volume of surface run off water and the lower parts of Nakuru City have had the brunt. The Mbugua Mbugua project was intended on storm water management.
I have considered the evidence on record and do find that the 1st defendant has established that he was contracted to undertake drainage works on a section of Baringo road under the project name "Mbugua Mbugua road and drainage works”. The 1st defendant called witnesses who proved that this was a section of the road that had experienced a flooding menace overtime. The drainage works were hence meant to clear the water path and save the residents from floods and the rain water accessing their homesteads. To divert the rain water, they sunk and dug the trenches and expected any rain water to find its pathway through the drainage into Lake Nakuru National Park.
DW2 and DW3 gave very crucial evidence that the plaintiffs are their immediate neighbors and that the former are the registered owners of adjoining parcels of land where they have resided for nearly 30 years with their families which was the area of the project. They gave evidence that flooding has been a perennial challenge whenever it rains. When it rained they could not gain access to their homes as the road would flood and thus be impassable. They give credit to the County Government of Nakuru in deciding to undertake drainage works on the part section of the Baringo road of about 300metres where flood waters would converge. Dw2 gave evidence which was not controverted that the areas where the witness and the plaintiffs live is on the sloppy end of the road and when it rains, the flood water would find a resting place thus the homesteads around the area would be flooded and they could not access them. The witness states that after the said construction of the drainage works and tarmacking of the part section of the said road, the perennial flooding ended. He now lives in peace without ever having to worry of flooding when it rains and/or access to his home.
The plaintiffs have not demonstrated that flooding was caused by the acts of the 1st defendant because the same existed even before the 1st defendant was awarded the contract to do the drainage. This court agrees with the 1st defendant that the flooding was caused by heavy rains and the topography of the section of the road which was described as a sloppy area with the homesteads of the plaintiffs as water resting area.
The defendant submits that the flooding was an Act of God as it was beyond his ability to prevent. In tort, the doctrine of an Act of God is more narrowly applied and requires proof that:
(a) The event was extraordinary and beyond reasonable human foresight.
(b) The defendant took reasonable precautions to prevent or mitigate harm.
(c) There was no contribution from human action or omission to the damage.
In cases involving natural disasters, the defense may fail if the defendant’s actions contributed to the harm. Thus, while an act of God may excuse liability in tort, it is not a blanket immunity and depends on the specific facts and the defendant’s conduct. An act of God can absolve liability if the defendant proves the harm resulted exclusively from natural forces with no human agency or negligence involved. The defendant bears the burden of proving the event qualifies as an act of God. The 1st defendant has proved that there has been perennial flooding in the area and that he was contracted to construct drainage to end the flooding and therefore cannot be blamed for the flooding.
Ultimately, I do find the 1st defendant no liable for the flooding that occurred as the same was perennial before the 1st defendant had been contracted to construct the drainage.
On the issue of the approval of the project by NEMA, the 1st defendant produced LICENCE NO NEMA/EIA/PSI/1877 and application reference no NEMA/EIA/PSR/30711 as evidence of application and approval. The project report dated 21st March 2022 prepared by Aron Kecha , the lead expert in the firm of Emarald Environment Ltd was submitted to the county director of Environment Nakuru county on the 25th March 2022 and to the Nakuru City 30th March 2022. In the said report, the proponent is the county government of Nakuru. In the minutes prepared by the lead expert, public participation was done according to the law under the assistance of Alinoor Hassan, the senior chief Bondeni on the 17th March 2022 in the attendance of 23 people most of them were the owners of land in the area.
The plaintiffs have failed to prove that the flooding was as a result of the works that were done by the 1st defendant. Other than their statements, the plaintiffs did not produce any expert report on the cause of the flooding. The burden of proof in Kenya is governed primarily by the Evidence Act, Cap. 80, with key principles established in Sections 107, 108, and 109. It a General Rule of the law on evidence that the burden of proof lies with the party who asserts a fact and seeks a court's judgment on a legal right or liability. As stated in Section 107(1), "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 legal burden (or onus) remains on the party who invokes the law and asserts the affirmative of the issue. The evidential burden shifts during trial depending on the evidence presented it lies on the party who wants the court to believe a particular fact exists. :
In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another (1 EA 334), the Court of Appeal affirmed that the legal burden of proof lies with the party who invokes the aid of the law and substantially asserts the affirmative of the issue.
In Evans Nyakwana v Cleophas Bwana Ongaro (eKLR), it was held that the burden lies on the person who would fail if no evidence were given on either side — a principle reinforced in multiple recent judgments, including Abdul v Mokua (2025) and Kengere v Aisha Motor Dealers Ltd (2025
On the issue as to whether the plaintiffs are entitled to a permanent injunction against the defendants from carrying out the construction works of the road in issue, it is regrettable that the project was completed in 2023- 2024 despite the existence of the court order stopping the same. The said fact was not brought to the attention of the court by the plaintiffs until at the hearing of the suit. This court finds the issue as moot.
The suit can be dismissed at this point on liability only, however in case I am found to be wrong in my analysis on liability, I will take liberty to assess the amount of general damages to be paid by the defendants. It is trite that comparable injuries should as far as possible be compensated by comparable awards. The first question the court should address is whether the plaintiffs have proved damage or loss.
The plaintiffs submitted that they are entitled to general damages for distress, pain and suffering as a result of the flooding and destruction of property. It is trite that general damages are damages at large and therefore the court does the best it can in reaching the nature of the gravity of the injuries. I have considered the rival submissions and evidence on record and do find that the plaintiffs are entitled to ksh 100,000 each for pain and suffering and distress due to the flooding.
On the issue of aggravated damages, I do find that the plaintiffs have not proved that the defendants acted out of improper motive or malice.
On the issue of special Damages, I do find that the plaintiffs have pleaded special damages of Ksh 145,768 and have produced receipts to prove the special damages and therefore I do award then the same.
Ultimately, having found that the plaintiffs have not proved liability, the suit is dismissed with no orders as to costs as the project was a public project involving public funds.
(a) Plaint
Shadrack Kipkorir Maru, Jane Wanjiru Njenga, Charles Magati Maranga, Margaret Nyambura Wanja, Jane Nyambeki Maranga and Twairi Mauda Juma (herein referred as Plaintiffs) filed a suit against Effective Construction Ltd herein referred to as Defendants seeking the following orders namely:-
a. An order of permanent injunction barring the Defendants/Respondents, their agents, employees, contractors, servants and/or whomsoever acting on their behalf from developing and/or carrying out any construction works of the Mbugua Mbugua Road and Drainage until a fresh, extensive and informative Environment Impact Assessment exercise is carried out and a report filed in court.
b. An order directing the 2nd Interested Party herein to issue directions as to how the adverse effects suffered by the Plaintiffs and their properties can be mitigated.
c. General damages for distress, pain and suffering for the 1st, 2nd, 3rd, 4th 5th and 6th Plaintiffs.
d. An award of aggravated damages for the gravity of the loss and damage suffered by the 1st, 2nd, 3rd, 4th 5th and 6th Plaintiffs.
e. Special damages amounting to Kshs145,768.00 and as pleaded at paragraph 28 of this plaint.
f. Costs of this suit and interest at court rates.
g. Any other or further award that the court may deem fit to grant; and
h. Any other or further relief as this Honourable Court may deem fit and just to grant.
The plaintiff complaint is that at all material times, the 2nd Plaintiff was and is the registered proprietor of the land parcel known as Nakuru Municipality Block 1/1227 located in Nakuru County and measuring approximately 0.0294 whereas the 5th Plaintiff was and is the registered proprietor of the land parcel known as Nakuru Municipality Block 1/1226 located in Nakuru County and measuring approximately 0.0295 hectares. The 1st, 3rd, 4th and 6th plaintiffs were and still are tenants on the residential buildings erected on land parcel no. Nakuru Municipality Block 1/1226 belonging to the 5th Plaintiff. The defendants by themselves, their agents and/or employees, jointly and severally, were and still are undertaking construction of the Mbugua Mbugua Road and Drainage located adjacent to land parcels No. Nakuru Municipality Block 1/1227 and Nakuru Municipality Block 1/1226 [hereinafter referred to as “suit properties”] belonging to the 2nd and 5th plaintiffs, respectively.
According to the plaintiffs, the defendants were under the common law obligation established by the rule in the case of Ryland v Fletcher [1868] UKHL 1, to ensure that the said construction of the Mbugua Mbugua Road and Drainage would not interfere with the plaintiffs’’ use of the suit properties, wherein they reside.
On or about 17th August 2023, while undertaking construction of the Mbugua Mbugua Road and Drainage, the defendants by themselves, their agents and/or employees wrongfully and unlawfully caused blockage of the drainage system available on the suit properties, causing rain water mixed with sewage to flood into the residential buildings erected therein, as a result of which the Plaintiffs herein suffered serious sanitary hazards and sustained substantial loss and damage to their properties.
The plaintiffs aver that the defendants commenced construction of the Mbugua Mbugua Road and Drainage or about the 9th of January 2023, but, in so doing, refused and/or failed and/or neglected to construct a specific drainage system for purposes of draining water flowing from and rain water at the construction site. This, in turn, forced the water flowing from and rain water at the construction site to, on top if the water flowing from and rain water at the residential buildings on the suit properties, also pass through the drainage and sewerage systems available on the suit properties, thereby causing their blockage.
The plaintiffs aver that the drainage and sewerage systems available on the suit properties were, particularly, designed to service waste water flowing from and rain water at the residential buildings on the suit properties and no more. Accordingly, the large quantities of water flowing from and rain water at the constraction site levied intense pressure on the drainage and sewerage systems available on the suit properties, interfering with their ability to pass water and causing them to block.
The plaintiffs aver that had the defendants prioritized the construction of a drainage system through which water flowing from and rain water at the construction site would pass off, the drainage and sewerage systems available on the suit properties would have never experienced blockage and accordingly, rain water would have never flooded into the suit properties, occasioning the plaintiffs great loss and damage to their person and property.
The plaintiff aver that that prior to the defendants/respondents’ construction activities of the Mbugua Mbugua Road and Drainage, neither had rain water flooded the suit properties nor caused blockage of the drainage and sewerage systems available on the suit properties.
Accordingly, the blockage of the drainage and sewerage systems available on the suit properties was not occasioned by the act of God but in fact, by the failure by the Defendants by themselves, their agents and/or employees to take precautionary measures to ensure that water flowing from and rain water at the construction site would not cause damage to the drainage and sewerage systems available on the adjacent properties.
The Plaintiffs aver that owing to the close proximity of the construction site to the suit properties, the Defendants owed a duty of care, which duty they breached, to take such care, as in all circumstances of the case, is reasonable to ensure that the Plaintiffs’’ properties would be adequately shielded from all evils arising their construction activities. The Plaintiff aver that as a consequence of the Defendants’ breach of duty of care, which is negligence, the Plaintiffs were exposed to grave health risks and sustained substantial loss and damage to their properties.
(b) Defence
In her defence the 1st Defendant states that even if the Plaintiffs allegations were true, which is denied, the construction of the road has to start with the earth works: clearance and culverts first. The 1st Defendant avers that the Plaintiffs are raising issues to do with sewerage which was never a mandate of the 1st Defendant. Sewerage systems are built by the respective Water works and/or sewerage agency who have not been included as a party in this suit.
The 1st Defendant avers that if at all there were any complaints in respect of the sewerage system, the same ought to be directed to the respective Water and Sewerage Agency and/or by registering a complaint in that regard with the said Water & Sewerage Agency. The 1st Defendant does not have the capacity to determine the flow of rain water. If at all the Plaintiffs assets and/or properties were damaged by flowing rain water, the same can be attributed to as an act of God for which the 1st Defendant cannot be held accountable and/or responsible for the same.
The 1st Defendant further avers that the Plaintiffs have not availed an independent expert report to substantiate their allegations of the Plaint and states that vide a report on the construction of the road referred to herein dated 28th August, 2023 it is clear from the said report that there has been a history of and/or persistent flooding in the said area thus necessitating the expansion of the road and/or drainage infrastructure as found at page 2 of the report. The flooding is a pure act of God that neither of the parties herein can be held responsible for.
The construction of the disputed road herein was done in the best interest and for the public good. It was meant to benefit the residents of Nakuru County and thus there may be inconveniences that the Plaintiffs will have to bear with for the road to be passable and the persistent flooding be dealt with once and for all.
The defendant contends that an Environmental Impact Assessment Report was done for the said road. The stakeholders, the plaintiffs being amongst them, were ably consulted whilst the report was being prepared.
The time the injunction orders were issued herein, the construction of the said road had been completed and thus any injunction orders as sought in the Plaint by the plaintiffs was issued in vain as the cause of action has been overtaken by events. The 1st Defendant avers that the Plaintiffs suit herein is hopeless and incompetent, it raises no plausible cause of action, the suit herein is thus vexatious, frivolous and a waste of the precious judicial time.
EVIDENCE ON RECORD
(a) Plaintiffs Case
When the matter came up for hearing, Shadrack Kipkorir Maru [PW1] adopted his witness statement and further testified that the 2nd and 5th Defendants are the registered owners of properties numbers Nakuru Municipality Block 1/1227 and Nakuru Municipality Block 1/1226 respectively, the 1st, 3rd and 4th plaintiffs are tenants in the properties. That on or about 17th August, 2023, while undertaking construction of the Mbugua Mbugua Road and Drainage, the Defendants by themselves, their agents and/or employees wrongfully and unlawfully caused blockage of the drainage system available on the suit properties, causing rain water mixed with sewage to flood into the residential buildings erected thereon, as a result of which the Plaintiffs herein suffered serious sanitary hazards and sustained substantial loss and damage to their properties, Photographic and video graphic evidence of the said flooding is attached in a bundle to the Plaintiffs ' List of Documents and marked as "annexure 4".
The flooding was occasioned by the Defendants' failure to construct a specific drainage system for purposes of draining water flowing from and rain water at the construction site. This, in turn, forced the water flowing from and rain water at the construction site to, on top of the water flowing from and rain water at the residential buildings on the suit properties, also pass through the drainage and sewerage systems available on the suit properties, thereby causing their blockage.
The drainage and sewerage systems available on the suit properties were, particularly, designed to service waste water flowing from and rain water at the residential buildings on the suit properties and no more. Accordingly, the large quantities of water flowing from and rain water at the construction site levied intense pressure on the drainage and sewerage systems available on the suit properties, interfering with their ability to pass water and causing them to block. The witness states that had the Defendants prioritized the construction of a drainage system through which water flowing from and rain water at the construction site would pass off, the drainage and sewerage systems available on the suit properties would have never experienced blockage and accordingly, rain water would have never flooded into the suit properties, occasioning the Plaintiffs great loss and damage to their person and property.
According to the plaintiff, the blockage of the drainage and sewerage systems available on the suit properties was not occasioned by an Act of God but in fact, by the failure by the Defendants by themselves, their agents and/or employees to take precautionary measures to ensure that water flowing from the construction site would not cause damage to the drainage system available on the adjacent properties. Prior to the Defendants' construction activities, neither had rain water flooded the suit properties nor caused blockage of the drainage system available on the suit properties. Owing to the close proximity of the construction site to the suit properties, the Defendants owed a duty of care, which duty they breached, to take such care, as in all circumstances of the case, is reasonable to ensure that the Plaintiffs' properties would be adequately shielded from all evils arising their construction activities. The witness is not aware of any Environmental Impact Assessment undertaken by the Defendants with regards to the construction of the Mbugua Mbugua Road and Drainage as my views were never taken into consideration before the commencement of the said construction.
That upon demanding for compensation for the loss and damage sustained on our properties, the Defendants gave out food to the residents occupying the residential located on the suit properties.
The food handouts by the Defendants do not adequately and wholly compensate the Plaintiffs for the loss and damage occasioned to their properties, as a direct consequence of the Defendants' actions.
(b) Defence Case.
The defence called 3 witnesses, DW1 Peter Mari Njuguna Operations manager of the 1ST Defendant, testified that the Defendant was contracted to undertake drainage works on a section of Baringo road under the project name "Mbugua Mbugua road and drainage works". It was a section of the road that had experienced a flooding menace overtime. The drainage works were hence meant to clear the water path and save the residents from floods and the rain water accessing their homesteads. As they undertook the works, diversion of the rain water was key and as they sunk and dug the trenches, they expected any rain water to find its pathway through the drainage into Lake Nakuru National Park. Rain water is an act of God. The 1st defendant could not have any control on the repercussions of the same. Their work was simply to assist the residents of the said area from the flood water menace and which they did. Currently no floods have been experienced since. All the requisite approvals were undertaken and approved as per the 1st defendant's list of documents.
DW2 Benson Waweru Njuguna, a Kenyan adult of sound mind residing and working for gain in Nakuru town within Nakuru County testified that that he is a resident of Race-Course estate within Nakuru town. He knows the plaintiffs who are his immediate neighbors. He is the registered owner of NAKURU MUNICIPALITY BLOCK 1/1207 where he has resided for nearly 30 years now with his family. He lives along Baringo road which connects to other estates being Langalanga, Mwariki and the Nakuru Game Park. The said Baringo road is the boundary of Race-Course and Langalanga estate which is in Nakuru East and Mwariki estates which is in Nakuru West.
For the entire period he has been a resident there, flooding has been a perennial challenge whenever it rains. When it rained they could not gain access to their homes as the road would flood and thus be impassable.
According to DW1, in the month of August, 2023, the County Government of Nakuru decided to undertake drainage works on the part section of the Baringo road of about 300metres where flood waters would converge. The areas where the witness and the plaintiffs live is on the sloppy end of the road and when it rains, the flood water would find a resting place thus the homesteads around the area would be flooded and they could not access them. Though the project name is "Mbugua Mbugua road and drainage works", the road itself is called Baringo road. After the said construction of the drainage works and tarmacking of the part section of the said road, the perennial flooding ended. He now lives in peace without ever having to worry of flooding when it rains and/or access to his home.
DW3, Stephen Njoroge Gitau, a Kenyan adult of sound mind residing and working for gain in Nakuru town within Nakuru County and a resident of Race-Course estate within Nakuru town testified that he knows the plaintiffs as his immediate neighbours. He is the registered owner of NAKURU MUNICIPALITY BLOCK 1/1206 where he has resided for more than 34years with his family. He lives along Baringo road which connects to other estates being Langalanga, Mwariki and the Nakuru Game Park. The said Baringo road is the boundary of Race-Course and Langalanga estate which is in Nakuru East and Mwariki estates which is in Nakuru West.
For the entire period he has lived there, flooding has been a menace wherever it rained. They could not access their homes as the road would turn impassable. They used to wait until the water subsides to enable them access their homes. It was later in the month of August, 2023 the County Government of Nakuru decided to construct the drainage on the part section of the Baringo road of about 300 metres. The Plaintiffs and witness live within this radius.
The area where they live is on the sloppy end of both sides of the road and whenever it rains, the flood water would find a resting place thus the homesteads around the area would be flooded and they thus could not gain access to their homesteads. The project name is "Mbugua Mbugua road and drainage works", the road itself is called Baringo road. After the said construction of the drainage works and tarmacking of the said road, the perennial flooding menace ended. They now live in peace without ever having to worry of flooding when it rains. The construction and/or rehabilitation of the section of the road was quite a relief.
The flooding of August, 2023 was not unique in any way. The flooding was an act of God and having lived there for the period, they all are aware of the dangers and would be prepared every time it rained in seeking alternative accommodation until the waters subside. That public participation was conducted to notify the household units neighboring the construction zone of the impeding construction works to enable them prepare the same.
RIVAL SUBMISSIONS
(a) Plaintiffs Submissions.
Counsel for the Plaintiff filed submissions dated 5th January 2026 and identified the following issues for determination:
a. Whether the Plaintiffs have met the legal threshold for a claim on negligence?
b. Whether the Plaintiffs have met the legal threshold for grant of a permanent injunction against the Defendants and all other persons acting on their instructions from carrying out any construction works of the Mbugua Mbugua Road and Drainage until a fresh, extensive and informative Environmental Impact Assessment exercise is carried out and a Report filed in Court?
c. Whether the Plaintiffs have met the legal threshold for issuance of an order directing the 2nd Interested Party herein to issue directions as to how the adverse effects suffered by the Plaintiffs and their properties can be mitigated?
d. What amount in terms of general damages for distress, pain and suffering are the Plaintiffs entitled to?
e. Whether the Plaintiffs are entitled to aggravated damage for the gravity of the loss and damage suffered?
f. What amount in terms of aggravated damages are the Plaintiffs entitled to?
g. Whether the Plaintiffs are entitled to special damages amounting to Kshs 145,768.00/=?
h. Whether the Plaintiffs have discharged both their legal burden of proof and evidentiary burden?
i. What is the law relating to uncontroverted evidence and analysis of evidence?
j. Who should bear the costs of the suit?
On the first issue, counsel submitted that the Defendants owed a clear duty of care to the Plaintiff’s and to the land in which they reside which was breached under Section 3 (1) and 87 of EMCA. Counsel submitted that there is a direct causal connection between the Defendant’s negligent conduct and the damage suffered by the Plaintiffs which has been established. Counsel submitted that the damage suffered by the Plaintiffs was foreseeable and natural consequence of the Defendants acts and omissions was not too remote. Reliance was placed on the case of Barnett vs Chelsea and Kensington Hospital Management Committee (1969).
On the second issue, counsel submitted that the Plaintiffs have established a clear legal and constitutional basis for the grant of a permanent injunction. Counsel relied on Article 10 (2) (a) of the Constitution of Kenya, Section 58 and 59 of the Environmental Management and Coordination Act and the case of Kenya Power & Lighting Co. Ltd vs Sheriff Molana Habib [2018] eKLR.
On the third issue, counsel submitted that the Plaintiffs have satisfied the legal threshold for an order compelling the 2nd Interested Party to issue directions mitigating the adverse effects suffered by the Plaintiffs and their properties. Reliance was placed on Sections 9 (2) (h) and 9 (2) (k) of the Environmental Management and Co-ordination Act and the case of Republic vs Kenya National Examinations Council ex parte Gathenji & 9 others [1997] eKLR.
On the fourth issue, counsel submitted that taking into account the current inflation percentages and the fact that the damage was occasioned to two parcels of land, an amount of Ksh 7,000,000/= is sufficient as general damages for the Plaintiffs jointly. Counsel relied on the following cases: Stanley Maore vs Geoffrey Mwenda [2004] eKLR, Alphonce Odero Augo vs Sinohydro Corporation Limited [2017] eKLR, Mwangi vs China Road and Bridge Corporation [2022] KEELC 15096 (KLR) and Aberdare Investments Limited vs Kenya National Highways Authority & 4 others [2024] KEELC 4419 (KLR).
On the fifth issue, counsel submitted that the Plaintiffs are entitled to aggravated damage for the gravity of the loss and damage suffered. Counsel relied on the case of Miguna Miguna vs Standard Group Limited & 4 others [2017] eKLR.
On the sixth issue, counsel submitted that the aggravated damages to the total tune of Ksh 6,000,000/= being Ksh 1,000,000/= for each party would be sufficient. Counsel relied on the case of The Nairobi Star Publication Limited vs Elizabeth Atieno Oyoo [2018] eKLR. On the seventh issue, counsel submitted that the Plaintiffs are entitled to special damages amounting to Ksh 145,768.00/=. Reliance was placed on cases of Hahn vs Singh (1985) eKLR and Kenya Power & Lighting Company Ltd vs James Muli Kyalo & another [2020] eKLR.
On the eighth issue, counsel submitted that the Plaintiffs have discharged both their legal and evidentiary burden of proof. Counsel relied on Section 107 (1) of the Evidence Act and the following cases: Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, Kanyungu Njogu vs Daniel Kimani Maingi [2000] eKLR, William Kabogo Gitau vs George Thuo & 2 others [2010] 1 KLR 526 and Palace Investment Ltd vs Geoffrey Kariuki Mwenda & Another (2015) eKLR.
On the ninth issue, counsel submitted that the defence witnesses’ inability to rebut the Plaintiffs’ evidence on causation, foreseeability and damage leaves the Plaintiff’s case substantially unchallenged on material particulars. Counsel relied on the case of Janet Kaphiphe Ouma & Another vs Marie Stopes International (Kenya) HCCC No 68 of 2007. On the tenth issue, counsel submitted that the Plaintiffs are entitled to costs of the suit as it is merited.
(b) 1st Defendant’s Submissions
Counsel for the 1st Defendant filed submissions dated 19th January, 2026. It was counsel’s submissions that the photographs produced by the Plaintiff show water on their alleged property and nothing more. Counsel submitted that the source of water is not demonstrated although they claim the same was channeled to their properties by the defendants. Counsel submitted that the Plaintiff’s witnesses were not expert in field of civil or construction engineering. Counsel submitted that no scientific expert reports were produced attributing any negligence on the part of the defendants, its agents, servants or employees.
It was counsel’s submission that no independent witness was called such as a resident engineer of the County or the National Government who had designed, supervised and or approved the construction works. Counsel submitted that there was no expert report produced by the Plaintiff to rule out the possibility of any other causes for the loss or damage or damage to the Plaintiff’s investment on the land.
Counsel went on to submit that the basis upon which the Plaintiff held the view that there was poor workmanship and or non-alignment with the natural course of the water flow is a layman’s guess lacking any backing from an expert report and the law. Reliance was placed on the following cases: Kinyua (Suing on his behalf & as the legal representative of the Estate of his late brother Edward P. Gitonga Nkari Deceased) vs Intex Construction Company Ltd (Environment Land Case 43 of 2018) 2023 KEELC 20398 and Guyo vs Kenya Electricity Generating Company PLC (KENGEN) National Assembly (Interested Party) (Environment Land Petition 4 of 2022) 2025 KEELC (KLR).
Counsel submitted that the Plaintiff’s suit is frivolous and is ripe for dismissal.
ANALYISIS AND DETERMINATION
This dispute revolves on the flooding menace in Nakuru City between the years 2022 and 2023. According to a report by the County Government of Nakuru, flooding has been synonymous with Nakuru City due to the terrain of the town slope downwards from Menengai Crater to Lake Nakuru and storm water drain to the lake. The increased built up space has increased the volume of surface run off water and the lower parts of Nakuru City have had the brunt. The Mbugua Mbugua project was intended on storm water management.
I have considered the evidence on record and do find that the 1st defendant has established that he was contracted to undertake drainage works on a section of Baringo road under the project name "Mbugua Mbugua road and drainage works”. The 1st defendant called witnesses who proved that this was a section of the road that had experienced a flooding menace overtime. The drainage works were hence meant to clear the water path and save the residents from floods and the rain water accessing their homesteads. To divert the rain water, they sunk and dug the trenches and expected any rain water to find its pathway through the drainage into Lake Nakuru National Park.
DW2 and DW3 gave very crucial evidence that the plaintiffs are their immediate neighbors and that the former are the registered owners of adjoining parcels of land where they have resided for nearly 30 years with their families which was the area of the project. They gave evidence that flooding has been a perennial challenge whenever it rains. When it rained they could not gain access to their homes as the road would flood and thus be impassable. They give credit to the County Government of Nakuru in deciding to undertake drainage works on the part section of the Baringo road of about 300metres where flood waters would converge. Dw2 gave evidence which was not controverted that the areas where the witness and the plaintiffs live is on the sloppy end of the road and when it rains, the flood water would find a resting place thus the homesteads around the area would be flooded and they could not access them. The witness states that after the said construction of the drainage works and tarmacking of the part section of the said road, the perennial flooding ended. He now lives in peace without ever having to worry of flooding when it rains and/or access to his home.
The plaintiffs have not demonstrated that flooding was caused by the acts of the 1st defendant because the same existed even before the 1st defendant was awarded the contract to do the drainage. This court agrees with the 1st defendant that the flooding was caused by heavy rains and the topography of the section of the road which was described as a sloppy area with the homesteads of the plaintiffs as water resting area.
The defendant submits that the flooding was an Act of God as it was beyond his ability to prevent. In tort, the doctrine of an Act of God is more narrowly applied and requires proof that:
(a) The event was extraordinary and beyond reasonable human foresight.
(b) The defendant took reasonable precautions to prevent or mitigate harm.
(c) There was no contribution from human action or omission to the damage.
In cases involving natural disasters, the defense may fail if the defendant’s actions contributed to the harm. Thus, while an act of God may excuse liability in tort, it is not a blanket immunity and depends on the specific facts and the defendant’s conduct. An act of God can absolve liability if the defendant proves the harm resulted exclusively from natural forces with no human agency or negligence involved. The defendant bears the burden of proving the event qualifies as an act of God. The 1st defendant has proved that there has been perennial flooding in the area and that he was contracted to construct drainage to end the flooding and therefore cannot be blamed for the flooding.
Ultimately, I do find the 1st defendant no liable for the flooding that occurred as the same was perennial before the 1st defendant had been contracted to construct the drainage.
On the issue of the approval of the project by NEMA, the 1st defendant produced LICENCE NO NEMA/EIA/PSI/1877 and application reference no NEMA/EIA/PSR/30711 as evidence of application and approval. The project report dated 21st March 2022 prepared by Aron Kecha , the lead expert in the firm of Emarald Environment Ltd was submitted to the county director of Environment Nakuru county on the 25th March 2022 and to the Nakuru City 30th March 2022. In the said report, the proponent is the county government of Nakuru. In the minutes prepared by the lead expert, public participation was done according to the law under the assistance of Alinoor Hassan, the senior chief Bondeni on the 17th March 2022 in the attendance of 23 people most of them were the owners of land in the area.
The plaintiffs have failed to prove that the flooding was as a result of the works that were done by the 1st defendant. Other than their statements, the plaintiffs did not produce any expert report on the cause of the flooding. The burden of proof in Kenya is governed primarily by the Evidence Act, Cap. 80, with key principles established in Sections 107, 108, and 109. It a General Rule of the law on evidence that the burden of proof lies with the party who asserts a fact and seeks a court's judgment on a legal right or liability. As stated in Section 107(1), "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 legal burden (or onus) remains on the party who invokes the law and asserts the affirmative of the issue. The evidential burden shifts during trial depending on the evidence presented it lies on the party who wants the court to believe a particular fact exists. :
In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another (1 EA 334), the Court of Appeal affirmed that the legal burden of proof lies with the party who invokes the aid of the law and substantially asserts the affirmative of the issue.
In Evans Nyakwana v Cleophas Bwana Ongaro (eKLR), it was held that the burden lies on the person who would fail if no evidence were given on either side — a principle reinforced in multiple recent judgments, including Abdul v Mokua (2025) and Kengere v Aisha Motor Dealers Ltd (2025
On the issue as to whether the plaintiffs are entitled to a permanent injunction against the defendants from carrying out the construction works of the road in issue, it is regrettable that the project was completed in 2023- 2024 despite the existence of the court order stopping the same. The said fact was not brought to the attention of the court by the plaintiffs until at the hearing of the suit. This court finds the issue as moot.
The suit can be dismissed at this point on liability only, however in case I am found to be wrong in my analysis on liability, I will take liberty to assess the amount of general damages to be paid by the defendants. It is trite that comparable injuries should as far as possible be compensated by comparable awards. The first question the court should address is whether the plaintiffs have proved damage or loss.
The plaintiffs submitted that they are entitled to general damages for distress, pain and suffering as a result of the flooding and destruction of property. It is trite that general damages are damages at large and therefore the court does the best it can in reaching the nature of the gravity of the injuries. I have considered the rival submissions and evidence on record and do find that the plaintiffs are entitled to ksh 100,000 each for pain and suffering and distress due to the flooding.
On the issue of aggravated damages, I do find that the plaintiffs have not proved that the defendants acted out of improper motive or malice.
On the issue of special Damages, I do find that the plaintiffs have pleaded special damages of Ksh 145,768 and have produced receipts to prove the special damages and therefore I do award then the same.
Ultimately, having found that the plaintiffs have not proved liability, the suit is dismissed with no orders as to costs as the project was a public project involving public funds.