Omanyala v Wanyonyi (Civil Appeal E060 of 2024) [2025] KEHC 17747 (KLR) (2 December 2025) (Judgment)
Neutral citation:
[2025] KEHC 17747 (KLR)
Republic of Kenya
Civil Appeal E060 of 2024
S Mbungi, J
December 2, 2025
Between
Francis Omanyala
Appellant
and
Naomi Nancy Wanyonyi
Respondent
(Being an appeal against the decision delivered by Hon Caroline Cheruiyot on the 20th March, 2024 in Kakamega SCCC No, E026 of 2024)
Judgment
1.This is an appeal arising from the judgment of Hon. Caroline Cheruiyot delivered on 20th March 2024 in Kakamega SCCC No. E026 of 2024. The trial court entered judgment on liability at 100% in favour of the claimant and awarded Kshs. 79,402/= as damages together with interest and costs. The appellant challenges that decision in its entirety.
2.The Respondent and the appellant own adjacent parcels of land. On 31st July 2023, the appellant undertook blasting of underlying rock using dynamite on his parcel, having secured permits from the County Government and approvals from the National Environment Management Authority.
3.The respondent alleged that the blasting caused structural cracks on her two-storey house. A quantity surveyor prepared an assessment attributing the cracks to vibrations from the blasting. The appellant countered this position, arguing that:a.The house already had cracks before commencement of blasting;b.The National Environment Management Authority conducted public participation, including a pre-inspection;c.The claim was res judicata because similar issues had been raised in Butali PMCC No. E120 of 2023;d.Causation of damage was not proved;e.Bill of quantities constituting the Kshs. 79,402 claim was hearsay and not backed by invoices or proof of repairs.
4.The issues for determination are:a.Whether the claim was res judicata.b.Whether the trial court properly analyzed causation and liability.c.Whether the award of Kshs. 79,402 was proved.d.Whether the trial court considered the appellant’s evidence and submissions.e.Whether the judgment should be upheld, varied, or set aside.
Analysis
5.This being a first appeal, it is the duty of the court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Mutisya v Autosprings Manufacturers Limited (Appeal 7 of 2022)[2023] KEELRC, this principle was relied upon thus:
6.Whether the claim was res judicata, section 7 of the Civil Procedure Act requires the following elements:
7.In Butali SPMCC No. E120 of 2023, the respondent sought injunctive orders preventing the appellant from blasting. The matter was struck out for want of jurisdiction, with directions that environmental issues fall within the National Environment Management Authority framework under the Environmental Management and Coordination Act.
8.A suit struck out for want of jurisdiction does not constitute a determination on the merits. The question that arises is whether a suit dismissed or struck out for want of jurisdiction can ground a plea of res judicata. The general principle is that a court without jurisdiction cannot make a determination on the merits of a dispute, and its decision cannot constitute a final judgment for purposes of section 7 of the Civil Procedure Act. This position was affirmed in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where the Court held that:
9.The plea of res judicata fails. The present claim for damages is distinct and was not adjudicated in Butali SPMCC No. E120 of 2023.
10.On liability and causation, the respondent’s claim relied partly on the doctrine in Rylands v Fletcher (1868), that one who brings a dangerous thing onto land and it escapes is strictly liable for foreseeable damage. Blasting using explosives is inherently hazardous.
11.The test for determining whether an activity is abnormally dangerous was laid out by the Supreme Court of Kansas , quoting an excerpt from The Restatement Of Torts, 519and 520:
12.However, strict liability still requires proof that the hazardous act caused the damage. The Respondent’s surveyor’s report stated that cracks were structural in nature and their probable cause was vibrations from blasting near the building. However, the Respondent’s house had been inspected by immediately after the public participation meeting on 9th June 2023 before blasting commenced, and that inspection allegedly found pre-existing cracks arising from workmanship. The appellant produced minutes of the public participation meeting and the permits showing regulatory approval.
13.The surveyor who testified for the Respondent did not inspect the house before blasting, nor did they rule out pre-existing causes with certainty.
14.The connection between blasting and the damage therefore needed to be proved on a balance of probabilities. The trial court did not meaningfully interrogate:a.whether the cracks were new or pre-existing;b.whether the surveyor considered pre-blast inspection reports;c.whether the type of explosives used were capable of causing the specific structural failures identified.
Finding
15.The trial magistrate did not properly evaluate the central question of causation. The judgment simply accepted the respondent’s report without addressing the conflicting pre-inspection evidence. An appellate court may interfere with factual findings where the trial court failed to properly evaluate evidence. In Makube vs Nyamiro 1983 KLR 403, it was held that:
16.A bill of quantity is an estimate, not evidence of loss. In the case of David Bagine v Martin Bundi [1997] eKLR, the Court of Appeal stated as follows:
17.The trial court awarded the precise estimated figure despite the absence of confirmation that the figure reflected actual damage. The magistrate misdirected herself by treating an unproved bill of quantity as proof of loss, hence the award cannot stand.
18.Whether the trial court considered the appellant’s evidence, the judgment did not meaningfully analyze:a.National Environment Management Authority inspection findings;b.Expert contradictions;c.The existence of pre-existing cracks;d.The permits and regulatory compliance;e.Causation concerns raised in submissions.
19.An appellate court is entitled to intervene where a trial court fails to consider material evidence. In the case of Selle & Another v. Associated Motor Board Company Ltd. [1968] EA 123, where the Court stated as follows:
Conclusion
20.Having re-evaluated the evidence, this court finds:a.The suit was not res judicata.b.Liability against the appellant was not proved to the required standard.c.The award of Kshs. 79,402 was unproved and cannot be sustained.d.The trial court failed to properly evaluate material evidence.e.The appeal therefore has merit.
Orders
21.The appeal is allowed.
22.The judgment and decree of Hon. Caroline Cheruiyot delivered on 20 March 2024 in Kakamega SCCC No. E026 of 2024 is hereby set aside in its entirety.
23.The respondent’s suit in Kakamega SCCC No. E026 of 2024 is dismissed.
24.Costs of this appeal and of the trial court are awarded to the appellant.
25.Right of Appeal 30 days.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 2ND DAY OF DECEMBER, 2025.S.MBUNGIJUDGEIn the presence of:-CA: Angong’aMs. Manyawa holding brief for Mr Ochieng for the Appellant present online.Mr. Chirchir holding brief for Mr. Kigen for the Respondent present online.