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Court of AppealDismissedCivil Appeal arising from Nairobi ELC Suit No. 350 of 2012

Extra Mile Ltd v Mwai & 2 others (Civil Appeal 456 of 2019) [2026] KECA 712 (KLR)

Court of Appeal
25 March 2026
3,035 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan developer must pay KShs 1.5 million and re-route drainage after diverting storm water onto neighbours' property without their consent.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment of the Environment and Land Court (Eboso, J.) delivered on 19th December 2018 in Nairobi ELC Suit No. 350 of 2012. The respondents, owners and occupiers of housing units on Vital View Court, LR No. 209/10345/3, Brookside Drive, Westlands, sued the appellant, the developer of the adjoining Urban Earth Apartments on LR No. 209/10345/1, for diverting the existing storm water drainage system across their driveway and front garden without notice or consultation. The trial court found the appellant liable for unauthorized diversion disrupting the respondents' quiet enjoyment, ordered it to re-route the drainage, and awarded general damages of Kshs. 1,500,000.00. The appellant advanced eight grounds, contending that its works were lawful, approved by the City Council of Nairobi, and that it was the wrong party. The Court, comprising Musinga, Kiage and Gatembu Kairu, JJA, in a single judgment, applied its first appellate mandate under rule 31(1)(a) of the Court of Appeal Rules to re-evaluate the evidence. It found that the Council's letter of 3rd May 2012 authorized only improvement of the existing drain, not diversion in the manner undertaken, and that affected residents were never consulted. It further held the appellant was properly sued and declined to disturb the damages award applying Butt v Khan. The appeal was dismissed with costs to the respondents on 25th March 2026.

Questions the Court framed

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

  1. 1.Whether the finding by the trial court that the appellant is liable for undertaking unauthorized diversion of the storm water drainage system is well supported by the evidence
  2. 2.Whether the Court should interfere with the award of general damages
  3. 3.Whether the appellant was the wrong party to be sued

Key legal issues

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01

Whether the trial court's finding of liability for unauthorized diversion of storm water drainage was supported by the evidence

Holding

The finding was upheld: the City Council approval extended only to improvement of the existing drain on the appellant's plot, not to diversion across the respondents' driveway and perimeter, and affected residents were never consulted.

Reasoning

The Court re-appraised the testimony of PW1, DW1 and DW2 and the City Council letter of 3rd May 2012. DW1 confirmed the approval was for conversion of the storm water drainage and that it was not to run along the boundary wall, and that the appellant had a duty to involve affected residents. The Court agreed with the trial judge that the 2012 works were unauthorized and disrupted the respondents' quiet enjoyment.

p. 6
02

Whether the appellant was the wrong party

Holding

The appellant was properly sued: it was the developer, the approval letter was addressed to it, and it carried out the offending diversion works.

Reasoning

The Court noted the approval letter of 3rd May 2012 was addressed to the appellant in response to its own application, and testimony and correspondence with the City Council and Water Resources Management Authority demonstrated it was the correct party.

p. 6
03

Whether the award of general damages of Kshs. 1,500,000.00 should be disturbed

Holding

The award was not disturbed; it was neither inordinately high nor an erroneous estimate.

Reasoning

Applying the settled principle from Butt v Khan, the Court found no error on the part of the trial judge in the quantum awarded for the disruption and suffering caused by the appellant's illegal works, and declined to interfere.

p. 6

Legal principles established

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  • On a first appeal, the Court of Appeal is mandated to re-appraise the evidence and draw its own inferences of fact, while making allowance for not having seen or heard the witnesses.
  • A development approval that authorizes only improvement of an existing drainage does not authorize diversion of the drainage across neighbouring properties without consultation; such unauthorized diversion attracting nuisance liability.
  • An appellate court will not interfere with an award of general damages unless it is inordinately high or low as to represent an erroneous estimate.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court, Nairobi
Nairobi ELC Suit No. 350 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under rule 31(1)(a) of the Court of Appeal Rules

Relief refused

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The appellant's challenge to liability for unauthorized diversion of the storm water drainage

The City Council approval letter dated 3rd May 2012 authorized only improvement of the existing drain, not diversion in the manner undertaken, and the respondents were never consulted

p. 5

The appellant's contention that it was the wrong party to the suit

The appellant was the developer, the approval letter was addressed to it, and it carried out the offending works

p. 6

Interference with the award of general damages of Kshs. 1,500,000.00

No error made the award inordinately high or an erroneous estimate

p. 6

Costs

The appeal was dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There is, however, nothing in the letter of approval from City Council of Nairobi dated 3rd May 2012 that authorized the diversion of the storm water to the respondents# property.
p. 5Scope of development approval - no authorization for diversion
On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.
p. 4Duty of a first appellate court
All in all, we have no basis for interfering with the judgment of the trial court as the same is well supported by the evidence tendered. Consequently, the appeal fails and is hereby dismissed with costs to the respondents.
p. 6Disposition - appeal dismissed with costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Extra Mile Ltd v Mwai & 2 others (Civil Appeal 456 of 2019) [2026] KECA 712 (KLR)", Case Analysis (2026). Civil Appeal arising from Nairobi ELC Suit No. 350 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/712/eng@2026-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.