Kenya Shell Limited v Milkah Kerubo Onkoba [2010] eKLR

Key Facts

Issues

• The court assessed the sufficiency of the expert report confirming diesel contamination in the respondent's borehole as evidence of liability, noting the appellant's absence of contradictory evidence and the report's role in admitting liability through conduct.
• The court addressed whether the learned judge erred by placing the burden of proof on the appellant to disprove contamination, rather than requiring the respondent to establish liability on a balance of probability as per legal principles.
• The court considered whether the respondent failed to mitigate her losses by refusing the appellant's Kshs.35,000 settlement offer and not promptly sinking a new borehole, despite the pollution's ongoing nature and the environmental principle that the polluter must pay.
• The court analyzed the applicability of the Rylands v Fletcher strict liability principle to the case, concluding that the appellant's failure to prove an Act of God or the respondent's default justified the award, as the diesel leak caused foreseeable damage under the rule.
• The court evaluated whether the award of Kshs.600,000/= in general damages was appropriate given the respondent's borehole cost Kshs.6,000 to construct and the lack of specific evidence quantifying the respondent's losses. The appellant argued the award exceeded reasonable compensation for the proven tort of contamination.

Holdings

• The Kenya Bureau of Standards' expert report confirming diesel contamination in the respondent's borehole was accepted as evidence, supporting the finding of liability.
• The court found the respondent's liability was admitted through the appellant's conduct, including supplying water for two weeks and attempting (unsuccessfully) to clean the borehole.
• The court determined that the respondent satisfied her duty to mitigate loss by seeking alternative water sources after the appellant failed to repair the leak or sink a new borehole.
• The court held that the Rule in Rylands v Fletcher (1868) applies to the case, establishing strict liability for the appellant as the polluter, with no valid Act of God defense supported by the evidence.
• The Court of Appeal dismissed the appeal with costs to the appellant, affirming the High Court's decision that the respondent was entitled to damages for the contamination of her borehole by the appellant's leaking diesel tank.

Remedies

• Award of Kshs.600,000 as general damages, interest from judgment date, and costs of the suit.
• The appeal was dismissed with costs to the appellant.

Monetary Damages

Legal Principles

Precedent Name

Judge Name

• J. G. Nyamu
• S. E. O. Bosire
• P. N. Waki

Passage Text

• On the issue of liability, we agree with the respondent's counsel that the same had been admitted by the appellant by its conduct and in particular the supply of water for two weeks; and the unfruitful effort to clean the respondent's borehole.
• The occupier of land who brings and keeps upon it anything likely to do damage if it escapes is at his peril to prevent its escape, and is liable for all the direct consequences of its escape, even if he has been guilty of no negligence.
• In the result, the appeal is dismissed with costs to the appellant.