The High Court has penalised a Chinese road construction firm Sh55 million for trespassing onto a piece of land owned by a company associated with businessman Maina Wanjigi in Ruiru, Kiambu County.
China Gansu International Corporation for Economic Technical Corporation Company Limited will pay Kitamaiyu Limited Sh55,042,000 in form of damages after it excavated murram soil without authority.
In its statement of claim, Kitamaiyu indicated that the Chinese contractor had entered into the suit premises and carted away several lorries of the soil causing massive damage to the topography of the property.
Kitamaiyu argued that it was the lawful owner of land over the past 29 years and produced a valuation report prepared by Ezekiel Musau.
Justice Lucy Gacheru, sitting at the Environment and Lands Court in Thika, noted that despite being served with court documents the Chinese company failed to file its defence. The matter proceeded by way of formal proof where the plaintiff called three witnesses and closed its case.
“There is no evidence to weigh as against the plaintiff’s evidence. However, the plaintiff is the one who has alleged and he had a duty to call sufficient evidence to prove his case on the required standard of balance of probabilities. Section 107 of the Evidence Act places such a duty on he who alleges must prove,” said Justice Gacheru.
To prove ownership of the land, Kitamaiyu produced a sale agreement dated November 23, 1989, and a grant over the suit property.
The court was also shown photographs of trucks on the suit property, with Justice Gacheru holding that the court was satisfied that indeed there was an exercise of carrying away of the murram from the land.
In absence of evidence to controvert claims of Kitamaiyu, the judge said that would only mean the said trucks belonged to the Chinese construction company.
Further, failure to defend indeed demonstrated there was wastage and destruction of the suit property that was ongoing and the said wastage and destruction needed to be stopped.
In awarding the damages, the court relied on Mr Musau’s valuation report.
“Without any evidence to controvert the same, this court has no reason to doubt that the plaintiff has suffered damage as stipulated in the report. Consequently, the court finds and holds that the plaintiff is entitled to damages as stated in the valuation report,” said justice Gacheru.
The Chinese contractor was undertaking the upgrading of Ruiru-Githunguri-Uplands road to bitumen standards.