Kenya Shell Limited v Milkah Kerubo Onkoba [2010] eKLR

Key Facts

Issues

• Whether the court correctly rejected the appellant's defense that the diesel leak was an Act of God, given the evidence of the leak's origin and the absence of natural causation.
• Whether the court erred in awarding Kshs.600,000 as general damages when the cost of constructing a new borehole was Kshs.6,000, and if the basis for the award (using special damages testimony) was legally sound.
• Whether Kenya Shell Limited is strictly liable under the Rylands vs. Fletcher principle for the escape of diesel from its underground tank into the respondent's borehole, and if the court correctly applied this rule of absolute liability.
• Whether the respondent failed to mitigate her losses by refusing the appellant's out-of-court settlement offer (Kshs.35,000 and water provision) and not sinking a new borehole, and if the court correctly addressed this obligation.
• Whether the court improperly shifted the burden of proof to the appellant (Kenya Shell Limited) when the respondent (Milkah Kerubo Onkoba) failed to establish her claim for special damages on a balance of probability.

Holdings

• The court rejected the appellant's defence of an Act of God, noting the lack of evidence supporting this claim and affirming the respondent's evidence as sufficient to establish liability.
• The court upheld the award of Kshs.600,000 as general damages, finding no valid grounds for intervention in the superior court's discretionary decision, and confirmed the respondent's duty to mitigate was adequately addressed.
• The court dismissed the appeal with costs to the appellant, concluding the superior court's judgment was legally sound and factually supported.
• The court applied the Rule in Rylands v Fletcher (1868) to hold the appellant strictly liable for the diesel leak into the respondent's borehole, as the evidence confirmed the escape of diesel and no valid defences (e.g., Act of God) were established.

Remedies

• The costs of the appeal were awarded to the appellant.
• The respondent was awarded the costs of the suit.
• A global sum of Kshs.600,000 was awarded as general damages for the proven tort.
• Interest was awarded from the date of the judgment.

Monetary Damages

Legal Principles

• The court referenced the environmental law principle that 'the polluter must pay,' emphasizing the appellant's responsibility for the unmitigated pollution. This was used to justify the damages award despite the continuing nature of the harm.
• The respondent bore the burden of proving her case on a balance of probability. The court found her evidence sufficient to establish liability, particularly noting the Kenya Bureau of Standards expert report confirming contamination. The appellant's failure to provide evidence in rebuttal contributed to the judgment in favor of the respondent.
• The court applied the Rule in Rylands v Fletcher (1868) to establish strict liability for the appellant's underground diesel tank leakage. This principle holds that an occupier of land who introduces something likely to cause damage if it escapes is liable for all direct consequences, regardless of negligence. The court found the diesel escape was not an Act of God and affirmed the respondent's claim under this doctrine.

Precedent Name

Judge Name

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

Passage Text

• "In the result, the appeal is dismissed with costs to the appellant."
• "Although there was no dispute that the cost of sinking a new borehole was Kshs.6,000/= ... until such time that the appellant would either repair the leak or remove the underground tank."
• "The Rule in Rylands -vs- Fletcher ... is applicable to the situation before us. It is a rule of absolute or strict liability recognized by our law – one of the chief instances in which a man acts at his peril and is responsible for accidental harm, independently of the existence of the wrongful intent or negligence."