Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 97 of 2016

Hakika Transporters Services Limited v Albert Chulah Wamimitaire [2018] KECA 747 (KLR)

Court of Appeal of Kenya
8 February 2018
3,367 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
This was a first appeal against the judgment of Omollo J of the High Court at Mombasa (ELC Case No. 214 of 2011, delivered 8 October 2015), which awarded the respondent Ksh 2,500,000 as compensation for a residential 'house without land' on Plot No. 267/V/Mainland North, Mombasa, and Ksh 270,000 for one year's lost rental income. The respondent alleged that the appellant constructed a perimeter wall which diverted sewage into his house, causing tenants to vacate. The appellant denied constructing any wall on Plot 267, asserting its interest was in original Plot 442/V/MN, from which LR 2621/V/MN was subdivided. The Court of Appeal, in a single judgment of the court delivered by Waki, Karanja and Koome JJ.A, held that the respondent bore the burden of proving that the wall was constructed on the plot where his house stood and that the appellant caused the damage. Finding the pleadings and evidence referred to two different plots, the Court held the trial judge erred in going outside the pleadings and evidence, and set aside the award of Ksh 2,500,000. However, since the appellant admitted building the wall on its own plot and it was not denied that sewage escaped, causing the tenants' departure, liability in nuisance under the rule in Rylands v Fletcher was upheld and the award of Ksh 270,000 for lost rental income preserved. The appeal partially succeeded: the appellant received costs in the High Court limited to the preserved sum, with no order as to the costs of the appeal given its partial success.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 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. 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. 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

#
01

Whether the respondent proved his claim for compensation for the house without land

Holding

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.

Reasoning

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.

p. 3
02

Whether the respondent was entitled to damages for loss of rental income caused by nuisance from escaping sewage and storm water

Holding

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.

Reasoning

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.

p. 4
03

The duty of a first appellate court

Holding

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.

Reasoning

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.

p. 2

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. 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. 2.Upheld the order awarding the respondent Ksh 270,000 for loss of rental income
  3. 3.Awarded the appellant costs in the High Court limited to the said sum of Ksh 270,000
  4. 4.Made no order as to costs of the appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
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

p. 3

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

p. 4

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.
p. 4Disposition - partial allowance of the appeal
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.
p. 4Costs order
The respondent bore the burden to show that the perimeter wall was constructed by the appellant or with the appellant's authority.
p. 3Burden of proving causation
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.
p. 4Liability for escaping water - Rylands v Fletcher
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
p. 2First appeal duty

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.

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.