China contractor to pay Wanjigi firm Sh55m for murram trespass

A Chinese road construction firm has lost its bid to quash a court decision requiring it to pay about Sh55 million to a company owned by former Cabinet minister Maina Wanjigi.

China Gansu International Corporation for Economic Technical Corporation Company will have to pay Mr Wanjigi's Kitamaiyu Limited the amount after the Environment and Lands Court in Thika dismissed an application to have the judgment set aside.

Kitamaiyu was in April awarded a sum of Sh55,042,000 in form of damages after suing that the Chinese contractor for allegedly excavating murram soil from its land in Ruiru, Kiambu County without its consent.

The Chinese firm failed to file a defence in the case.

Kitamaiyu claimed that the Chinese contractor had invaded the suit premises, known as Kitamaiyu Estate, and carted away several lorries of the soil, causing massive damage to the topography of the property.

Following the judgment, the Chinese firm moved to court, saying it was not aware of the case and that it learnt of the award to Kitamaiy through the media.

It urged Justice Lucy Gacheru to set aside the judgment and grant it an opportunity to file a defence.

The execution of the order, Chinese company argued, would cause it tremendous loss and disruption of its business in various parts of the country. It also expressed concern that Mr Wanjigi's firm may attach the plant, machinery and equipment in the process of execution of the court order.

Zou Qili, the general manager, said he had learnt about the court's judgment through a local daily when he and his colleagues were on self-quarantine imposed by the government upon their return from China.

On claims his firm had trespassed on Kitamaiyu's land, Mr Zou blamed another company called Scaffolding International Limited that had been sub-contracted to supply murram and gravel in 2018 for upgrading Ruiru-Githunguri-Uplands Road.

He argued that his company had a good defence and if given an opportunity to be heard would proved its case, including pursuing indemnity and contribution from Scaffolding International.

But Justice Gacheru found that the Chinese firm's failure to defend the case was deliberate as evidence showed that court papers were served on a project manager, who indicated that he had authority to receive the documents.

"While the applicant has denied that there was ever service upon it, it has not produced before this court any evidence by the said project manager denying service of the suit papers. Further, the applicant has not in any way denied that the project manager is a principal officer in the company," said the judge.

The court noted that the company had acknowledged trespassing the Kitamaiyu estate though it was blaming a third party, which was not part of the court proceedings.

It held that the Chinese firm can seek reimbursement or breach of contract from the third parties who may have misled it.

"It will not be in the interest of justice for this court to set aside a regular judgment and ventilate on the issues between the applicant and a third party over an agreement wherein the plaintiff (Kitamaiyu) was not a party to," said Justice Gacheru.