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Case Brief · caselaw.co.ke
ELCPartially AllowedELC Suit (Kajiado; amended plaint dated 19th May 2021)

William Mungai & 22 Others v Kenya Railways Corporation

Environment and Land Court
10 February 2025
4,007 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Kenya Railways to pay residents for homes damaged by SGR blasting, but refused environmental restoration orders because only NEMA can grant those.

What this practically means

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Executive summary

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Twenty-three Plaintiffs, owners of residential and farm properties in Milimani Estate, Tuala, Kajiado, sued the Defendant (operator of the Standard Gauge Railway) for damage caused by rock blasting during construction near their land. They sought a declaration of breach of EIA Licence clauses, an environmental restoration order, Kshs 62,345,378.60 for structural repairs, Kshs 96,797,964.00 for environmental/social/economic damages (or general damages in the alternative), expert costs and suit costs. The Defendant denied liability, pleaded agency for the Government, alleged the buildings were illegal for lack of development permissions, blamed poor workmanship, and challenged the court's jurisdiction under EMCA. The court held it lacked original jurisdiction over the EIA Licence declaration and restoration order, EMCA reserving primary jurisdiction to NEMA and the NET, but had jurisdiction under Article 162(2)(b) and Section 13(7)(c) of the ELC Act over the land-based damages claim. The ex turpi causa defence failed; unapproved plans did not make the houses illegal. Causation was established partly from the Defendant's admissions that it settled and compensated project-affected persons. Rejecting both parties' expert reports as partisan, the court adopted the independent umpire's assessment and entered judgment for the Plaintiffs in specified sums per plaintiff. The environmental/social/economic damages claim failed for want of pleading particulars and proof. The Defendant was ordered to pay the Plaintiffs' costs of the suit, expert costs and interest. Judgment delivered virtually on 10th February 2025 by M.N. Gicheru, Judge.

Questions the Court framed

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

  1. 1.Whether the ELC has jurisdiction to grant prayers (a) and (b) of the amended plaint seeking a declaration of breach of EIA Licence clauses and an environmental restoration order
  2. 2.Whether the Plaintiffs discharged their burden of proving the alleged EIA Licence and the law in place
  3. 3.Whether the Court has jurisdiction to find the Defendant liable under any other cause of action if not pleaded
  4. 4.Whether the doctrine of ex turpi causa non oritur actio prohibits the Plaintiffs from claiming compensation for illegal structures
  5. 5.Whether the activities of the Defendant caused the alleged damage to the structures
  6. 6.What is the cost of repairing or replacing
  7. 7.Whether the Plaintiffs proved the special damages of extra expenses allegedly arising from breach of conditions of EIA Licence
  8. 8.Whether the Defendant is liable to pay the costs of the Plaintiffs' Structural Engineer and Environmental expert
  9. 9.Who should pay costs

Key legal issues

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01

Jurisdiction over EIA Licence declarations and environmental restoration orders

Holding

The ELC has no original jurisdiction; prayers (a) and (b) cannot be granted

Reasoning

Section 130 of EMCA gives the court only appellate jurisdiction from the National Environment Tribunal, while NEMA has primary supervisory mandate. Following Mutanga Tea, the prescribed procedure must be strictly followed. The claim on the EIA Licence was therefore outside the court's jurisdiction.

p. 8
02

Jurisdiction over the residual land-based claims

Holding

The court has jurisdiction under Article 162(2)(b) and Section 13(7)(c) of the ELC Act

Reasoning

The dispute relates to the use and occupation of land, and the court has power to award damages. The Plaintiffs' claim arising from their occupation of their land falls squarely within the ELC's jurisdiction even though the EIA Licence claim does not.

p. 8
03

Ex turpi causa non oritur actio defence

Holding

The doctrine does not apply

Reasoning

The Plaintiffs were not found to have committed any illegal act; lack of approved plans does not render buildings illegal. The Defendant's own witness confirmed the houses were structurally sound and none was condemned. The doctrine would apply only if the Plaintiffs were trespassers on the Defendant's land.

p. 9
04

Causation of structural damage

Holding

The Defendant's blasting activities caused the damage

Reasoning

The Defendant admitted settling claims of six Plaintiffs as project-affected persons and admitted relocating, compensating and restoring affected persons. It would be implausible for all houses in one estate to suffer similar damage only after the blasting. Causation was therefore established on the pleadings and evidence.

p. 9
05

Quantum of repair costs

Holding

Both parties' expert reports rejected; the umpire's report adopted

Reasoning

The Plaintiffs claimed more than restoration by including structural steel not originally present, while the Defendant's offer was too meagre. Both experts lost objectivity. The independent umpire's report, backed by a locus visit, provided a fair middle ground and was adopted.

p. 9
06

Special damages for environmental, social and economic loss

Holding

Not proved

Reasoning

Particulars of noise and dust pollution for each Plaintiff were not pleaded as required by Order 2 rule 10; only one Plaintiff testified, without farm records; no medical evidence proved any impairment. The Kshs 96,797,964 claim failed.

p. 10
07

Costs of experts and of the suit

Holding

Defendant to pay, costs following the event

Reasoning

Under the proviso to Section 27(1) of the Civil Procedure Act, costs follow the event. The Plaintiffs were successful, having recovered more than the Defendant offered, so no reason existed to deprive them of costs including the expert costs.

p. 10

Legal principles established

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  • The Environment and Land Court's jurisdiction under EMCA is appellate and not original; declarations on EIA licences fall to NEMA/NET in the first instance
  • Where there is a clear procedure for redress prescribed by the Constitution or an Act of Parliament, that procedure should be followed strictly
  • A claimant is entitled to restitutio in integrum - restoration to original condition - and no more
  • The court may reject both parties' conflicting expert reports and adopt an independent umpire's assessment
  • Ex turpi causa non oritur actio does not apply where the plaintiff has not been found to have committed an illegal act

Court orders

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  1. 1.Judgment entered for the Plaintiffs against the Defendant in the amounts awarded per plaintiff (1st Kshs 1,376,400; 2nd Kshs 1,386,000; 6th Kshs 2,046,400; 7th Kshs 1,453,600; 8th Kshs 1,661,200; 10th Kshs 975,000; 11th Kshs 1,688,900; 12th Kshs 685,000; 13th Kshs 878,000; 14th Kshs 1,041,000; 16th Kshs 1,515,000; 17th Kshs 961,000; 19th Kshs 2,250,000; 21st Kshs 1,285,000; 22nd Kshs 2,369,400; 23rd Kshs 1,876,500; 24th Kshs 941,000; 25th Kshs 1,742,000; 27th Kshs 1,558,500)
  2. 2.The Plaintiffs will also have the costs of the suit and interest
  3. 3.Prayers (a) and (b) of the amended plaint (declaration of breach of EIA Licence and environmental restoration order) not granted for want of jurisdiction
  4. 4.Claim for environmental, social and economic damages of Kshs 96,797,964.00 (and alternative general damages) dismissed as unproved

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(7)(c) of the Environment and Land Court Act (Act No. 19 of 2011)

Relief refused

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Declaration that the Defendant breached clauses 1.4, 1.8 and 2.11 of the EIA Licence and contravention of Article 42

The ELC's jurisdiction under EMCA is appellate only; NEMA and the NET have primary jurisdiction

p. 8

Environmental restoration order

Same jurisdictional objection under EMCA

p. 8

Compensatory damages for environmental, social and economic damages of Kshs 96,797,964.00 and alternative general damages

Particulars not pleaded as required by Order 2 rule 10 and no evidence adduced to prove the loss

Costs

The Plaintiffs will also have the costs of the suit and interest (Defendant to pay Plaintiffs' costs, including costs of the Plaintiffs' structural engineer and environmental expert).

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.

I find that this Court has no Jurisdiction to grant prayers (a) and (b) in the amended plaint dated 19th May, 2021.
p. 8Jurisdiction under EMCA
It is therefore obvious that were it not for the Defendant’s activities, the homes of the Plaintiffs would not have suffered the damage that they did.
p. 9Causation
What the Plaintiffs are entitled to is “restitutio in integrum” which is restoration to the original condition.
Measure of damages
The Court is entitled, for good reason, to reject the two reports by the quantity surveyors of the two parties.
p. 9Expert evidence
I find the umpire’s assessment fair and reasonable bearing in mind that she was not hired by either of the two parties.
p. 9Adoption of umpire's report
the principle of “ex turpi causa non oritur actio” has no place in this case.
p. 9Illegality defence
The Plaintiffs will also have the costs of the suit and interest.
Final orders - costs

Issues in the judgment

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material

Judgment text contains OCR errors (e.g. 'Plaintifis', 'sufiered', 'EAI Licence') and the 3rd Plaintiff's award column in the final table is blank, though the 3rd Plaintiff claimed Kshs 2,247,525; no award figure appears for the 3rd, 15th and 26th Plaintiffs in the disposition table

minor

Trial dates are internally inconsistent: 'At the trial on 17/7/2021, 4/11/2021, 23/3/2022 and 14/3/2021' - the last date precedes the others

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, "William Mungai & 22 Others v Kenya Railways Corporation", Case Analysis (2025). ELC Suit (Kajiado; amended plaint dated 19th May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/599/eng@2025-02-10

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