Hakika Transporters Services Limited v Albert Chulah Wamimitaire [2018] KECA 747 (KLR)
The bottom line
#The Court of Appeal cut a Ksh 2.5 million award for lack of proof but confirmed Ksh 270,000 for lost rent caused by escaping sewage, even from a wall lawfully built on the defendant's own plot.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, on the evidence on record, the respondent proved his claim for compensation of the rental houses and loss of rental income as sought
- 2.Whether the respondent proved that the appellant constructed the perimeter wall on Plot No. 267/V/Mainland North and that it was responsible for the alleged loss of rent
- 3.Whether the claim for compensation for the house without land was founded on an illegality or unsupported by proof of the suit premises
Key legal issues
#Whether the respondent proved his claim for compensation for the house without land
The claim failed because the respondent did not prove that the perimeter wall was constructed on Plot No. 267/V/Mainland North where his house stood; the evidence suggested the appellant's wall was on a different plot (LR 2621/V/MN). The trial judge erred in going outside the pleadings and evidence.
The respondent bore the burden of showing that the suit premises pleaded (Plot 267/V/MN) was the same as the appellant's land and that the wall was built by the appellant or with its authority. The pleadings and evidence referred to two different plots. The trial judge therefore fell into error by finding the wall was constructed on Plot No. 442 where the respondent's house stood. The claim for compensation of the house was unsupported by evidence.
Whether the respondent was entitled to damages for loss of rental income caused by nuisance from escaping sewage and storm water
Yes. The appellant admitted constructing a perimeter wall on its plot (LR 2621/V/MN) and it was not denied that sewage escaped, causing foul smell and disease that made the respondent's tenants vacate. Liability in nuisance was established and the award of Ksh 270,000 for one year's lost rent was justified.
Although a landowner is entitled to build a wall on his own plot, water or sewage escaping and damaging a neighbour's property engages liability under the rule in Rylands v Fletcher. The trial court's award of Ksh 270,000 for lost income was upheld on this basis.
The duty of a first appellate court
A first appellate court has a duty to reassess and re-evaluate the evidence tendered before the trial court and reach its own conclusions, subject to the caveat that it neither saw nor heard the witnesses.
The Court invoked the settled principle in Musera v Mwechelesi that an appellate court is entitled to make its own findings on the evidence but must be slow to interfere with the trial judge's findings unless there was no evidence to support them or the judge misunderstood the weight and bearing of the evidence.
Legal principles established
#- On a first appeal, the appellate court must reassess and re-evaluate the evidence and reach its own conclusions, while giving due allowance for the fact that it neither saw nor heard the witnesses
- A claimant bears the burden of proving causation - that the defendant's wrongful conduct more likely than not resulted in the damage complained of
- A landowner who brings or confines a mischievous thing on his own property, such as foul water or sewage, is liable for damage if it escapes and causes inconvenience or damage to a neighbour's property (the rule in Rylands v Fletcher)
Court orders
#- 1.Set aside the judgment of the High Court in respect of the award of Ksh 2,500,000 being the value of the house
- 2.Upheld the order awarding the respondent Ksh 270,000 for loss of rental income
- 3.Awarded the appellant costs in the High Court limited to the said sum of Ksh 270,000
- 4.Made no order as to costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- ELC Case No. 214 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (leave granted on 14th October, 2016 in Civil Application No. 1 of 2016)
Relief refused
#The respondent's claim for compensation of Ksh 2,500,000 for the value of the house without land
The respondent failed to prove that the perimeter wall was constructed on Plot No. 267/V/Mainland North where his house stood; the claim was not supported by evidence
The appellant's contention that the entire claim was founded on an illegality and ought to fail in its entirety
The claim for loss of rental income survived; liability in nuisance was established notwithstanding the appellant was entitled to build a wall on its own plot
Costs
The appellant is entitled to costs in the High Court limited to the said sum but we make no order as to costs for the appeal due to its partial success.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion this appeal partially succeeds. We set aside the judgment in respect of the award of Ksh 2,500,000 being the value of the house but uphold the order awarding the respondent Ksh 270,000.
The appellant is entitled to costs in the High Court limited to the said sum but we make no order as to costs for the appeal due to its partial success.
The respondent bore the burden to show that the perimeter wall was constructed by the appellant or with the appellant's authority.
We recognize the appellant was entitled to build a perimeter wall in his plot but if foul water seeped or escaped and caused inconvenience or damage to the neighbor's house, the appellant was responsible for the damage.
we have a duty to reassess and re-evaluate the evidence tendered before the trial court and reach our own conclusions with the usual caveat that we neither saw nor heard the witnesses who testified before the trial Judge
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njuki v CIC Insurance Group Ltd (Cause E962 of 2022) [2025] KEELRC 416 (KLR)[2025] KEELRC 416 (KLR)14 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Hakika Transporters Services Limited v Albert Chulah Wamimitaire [2018] KECA 747 (KLR)", Case Analysis (2018). Civil Appeal No. 97 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/747/eng@2018-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.