Kenya Pipeline Company Ltd (KPC) has been spared the agony of paying more than Sh60 million to former Central Bank of Kenya (CBK) Governor Duncan Ndegwa for trespassing onto his land in Karura and destroying trees when the firm set up staff houses in 1990.
The Court of Appeal ruled that the act of trespass and destruction of Mr Ndegwa’s land was caused by the contractor- L.G. Engineering Company ltd- who was independent of KPC, even though the houses were for the latter.
The court directed the contractor to pay Mr Ndegwa Sh16.2 million for trespass for the damages caused on his property.
The High Court had directed the costs of restoring the land and trespass to be borne by the contractor and KPC. The contractor now faces the cost of compensating Mr Ndegwa after the decision of the appellate court.
Justices Daniel Musinga, Kibaya Laibuta and Mwaniki Gachoka said as an independent contractor, the construction firm was at all times in command of its own workforce, tools and equipment, and was not under the KPC’s control while executing the works.
“The appellant had nothing to do with the source of the material, which the 2nd respondent (contractor) was to use in carrying out the building contract or wherever the 2nd respondent was going to dump any debris,” said the judges.
They said the construction firm was an independent contractor and not an employee of the KPC and it must bear liability alone.
The court heard that KPC contracted the construction firm in August 1988, to develop staff houses, adjacent to Mr Ndegwa's home. The parcels are separated by a road and the works were completed in 1990.
Mr Ndegwa sued the State corporation and the contractor accusing them of excavating a large portion of his land, leaving behind huge pits and bunkers, and removing huge chunks of red soil before dumping the debris on his parcel. He also accused the contractor of parking heavy construction machinery on his property.
Mr Ndegwa said the contractor also cut down indigenous trees, destroying approximately 6.47 acres, which he claimed became totally wasted.
He said the remaining parcel of about 13.19 acres was rendered “landlocked”, inaccessible and unusable and therefore, sought compensation for the destruction, general damages and loss of profits on the land.
KPC denied liability for the acts and blamed the contractor, saying it was an independent firm and it was not liable to third parties for any loss, damage, claim or injury arising from the contract.
The High Court judge Pauline Nyamweya ruled that both KPC and L.Z. Engineering Construction ltd should pay for the damages.
