Gakui v Wambui & 2 others (Environment and Land Case 139 of 2017) [2021] KEELC 1451 (KLR)
The bottom line
#A Nairobi resident won her nuisance case over buses at a residential property, but received no damages because she presented no evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether general damages for nuisance/violation of environmental rights can be awarded absent evidence
No damages are awardable where the Plaintiff adduced no evidence; submissions cannot substitute for evidence
Every litigant must place credible and sufficient material before the court upon which the law is applied. The Plaintiff, bearing the burden of proof on a balance of probabilities, tendered no evidence at all. Written submissions, described as the marketing language of lawyers, cannot usurp the place of evidence, and a court may not speculate or hypothesise that nuisance accrued merely because buses were kept in a residential area. Authorities confirm a judgment based on written submissions is a nullity.
Whether costs are payable and by whom
All Defendants are jointly and severally liable for costs; the 3rd Defendant's dereliction of statutory duty contributed to the nuisance
Under the Fourth Schedule of the Constitution and the Physical and Land Use Act, 2019, physical planning and land use designation devolve on the county government. The nuisance arose from the 3rd Defendant's failure to enforce the physical planning legislation (formerly the Physical Planning Act), amounting to abdication of statutory duty. Although the nuisance was not perpetrated by the 3rd Defendant, its dereliction condoned and perpetuated the nuisance, and it acted only after interim injunctions issued. All defendants are thus culpable for the nuisance.
Legal principles established
#- Submissions cannot take the place of evidence; no judgment or award can be founded on written submissions alone
- Pollution must be proved by empirical, technical and scientific evidence, not speculation or hypothesis
- A public body's dereliction of statutory duty in enforcing zoning regulations renders it culpable for nuisance caused by third parties
Court orders
#- 1.No damages are due and/or awardable to the Plaintiff
- 2.The Plaintiff is awarded costs of the suit, to be borne by the Defendants jointly and severally
- Jurisdiction invoked
- Articles 42, 69 and 70 of the Constitution, 2010 as read with Section 13(3) of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakui v Wambui & 2 others (Environment and Land Case 139 of 2017) [2021] KEELC 1451 (KLR)", Case Analysis (2021). Not stated in judgment (Plaint dated 6th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1451/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.