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Court of AppealDismissedCivil Appeal No. 61 of 2010· [2017] KECA 744 (KLR)

Haroun O. Nyamboki v Catholic University of Eastern Africa (A.M.E.C.E.A) [2017] KECA 744 (KLR)

Court of Appeal of Kenya
10 February 2017
2,808 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a landowner's sewage nuisance claim because he could not prove the contaminated water came from the university's plant.

What this practically means

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Executive summary

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The Court of Appeal (Visram, Karanja & Koome, JJ.A) dismissed an appeal by Haroun O. Nyamboki against the High Court's dismissal of his nuisance claim against The Catholic University of Eastern Africa. The parties owned adjacent parcels on a sloppy terrain, the respondent's parcel lying higher. In 1999 the respondent erected a sewerage plant, after which the appellant experienced seepage of contaminated water on his property. The High Court (Ojwang', J.) dismissed the suit on 31st August 2009 with costs and interest. On appeal, the Court framed three issues: whether nuisance was established, whether EMCA applied, and whether the award of interest on costs was proper. Applying the Rylands v Fletcher elements, the Court found the sewerage plant was a natural use of the respondent's land given the hostels it served, and that there was no evidence the contaminated water originated from the respondent's plant: joint specialist reports found the origin uncertain, seepage occurred during the rainy season, and topography suggested other higher-gradient parcels, including St. Clare's hostel, could be the source. The respondent's remedial measures did not constitute admissions of culpability. EMCA was held inapplicable because the cause of action arose in 1999 upon construction of the plant, before the Act came into force on 14th January 2000. The Court upheld the trial Judge's discretionary award of interest on costs under section 27(2) of the Civil Procedure Act. The appeal was dismissed. The decision affirms the first appellate court's reluctance to disturb trial findings absent demonstrated error.

Key legal issues

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01

Whether the tort of nuisance was established against the respondent

Holding

No - the source of the seepage was not proved to be the respondent's sewerage plant, and the plant was a natural use of land given the hostels

Reasoning

Jointly-commissioned water specialists found the origin of contamination uncertain; even the appellant's engineer's report was unclear on the source and samples were collected without the respondent. Seepage occurred in the rainy season and topography pointed to higher-gradient parcels. The City Council had found the plant properly constructed. Remedial measures were not admissions of liability.

p. 4
02

Whether EMCA applied to the dispute

Holding

No - the cause of action arose in 1999 upon construction of the plant, before EMCA came into force on 14th January 2000

Reasoning

The appellant's cause of action was based on the construction of the sewerage plant, which predated EMCA's commencement. Subsequent measures taken by the respondent were not attributed at trial as contributing to the nuisance, so no EMCA-governed act was pleaded.

p. 5
03

Whether the trial Judge properly exercised discretion in awarding interest on costs

Holding

Yes - section 27(2) of the Civil Procedure Act confers a discretionary power to award interest on costs not exceeding 14% per annum, exercised judiciously

Reasoning

The court cited section 27(2) of the Civil Procedure Act, held the power discretionary, and found no reason to interfere with the trial Judge's award of interest on costs from the date of filing of the suit.

p. 5

Legal principles established

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  • To establish liability in nuisance under the Rylands v Fletcher rule, a plaintiff must prove that the defendant brought on his land something likely to do mischief, made a non-natural use of land, that the thing escaped, and caused foreseeable damage.
  • A landowner's remedial measures taken on suspicion of causing a nuisance do not amount to an admission of culpability where the source of the harm is not established.
  • A first appellate court may interfere with trial findings only where the trial judge failed to take into account particular circumstances or relied on demeanour findings inconsistent with the evidence.

Court orders

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  1. 1.The appeal is dismissed

Authorities

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Legislation

  • Environmental Management and Co-ordination ActGeneral (commencement 14th January, 2000)
  • Civil Procedure ActSection 27(2)

Cases cited (5)

  • Sedleigh Denfield -vs- O'Callaghan
    [1940] 3 ALL ER 349
  • Rylands -vs- Fletcher
    [1861-73] ALL ER REP 1
  • Neepu Auto Spares Limited -vs- Narendra Chaganlal Solanki & 3 Others
    [2014] eKLR
  • Lalji Bhimji Sanghani & Another -vs- Chemilabs
    [1978] eKLR
  • St. Anne's Well Brewery Co. -vs- Roberts
    [1928] ALL E.R. Rep 28
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 248 of 2002
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers (Civil Procedure Act) over the High Court decision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Haroun O. Nyamboki v Catholic University of Eastern Africa (A.M.E.C.E.A) [2017] KECA 744 (KLR)", Case Analysis (2017). Civil Appeal No. 61 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/744/eng@2017-02-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.