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ELCPartially AllowedNot stated in judgment (Plaint dated 6th February 2017)· [2021] KEELC 1451 (KLR)

Gakui v Wambui & 2 others (Environment and Land Case 139 of 2017) [2021] KEELC 1451 (KLR)

Environment and Land Court
21 October 2021
3,759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff sued the 1st and 2nd Defendants, who converted a residential house at House Number 136/56, Joseph Kangethe Estate, into a garage and car wash for numerous buses, alleging nuisance through noise pollution, toxic fumes, air and dust pollution, and joined the 3rd Defendant (the county government) for failing to enforce zoning regulations. She sought permanent injunctions, general damages and costs. Interim injunctions issued on 28th February 2018 and were confirmed. Following directions by a predecessor judge, the parties agreed to file written submissions confined to two issues: damages and costs; no evidence was ever tendered or tested at a hearing. The court, bound by those directions, framed two issues. On the first, it held that although every person enjoys the constitutional right to a clean and healthy environment under Articles 42 and 70, and the court has jurisdiction under Section 13(3) of the Environment and Land Court Act, damages cannot be awarded in the absence of evidence. Written submissions, the 'marketing language' of lawyers, cannot replace evidence, and pollution must be proved by empirical, technical and scientific evidence rather than speculation. No damages were therefore awardable. On the second issue, the court held that under the Fourth Schedule of the Constitution and the Physical and Land Use Act, 2019, the 3rd Defendant bore the mandate to enforce zoning, and its dereliction of that duty contributed to the nuisance, making all Defendants culpable. The court ordered that no damages are payable but awarded the Plaintiff costs of the suit, borne by the Defendants jointly and severally.

Key legal issues

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01

Whether general damages for nuisance/violation of environmental rights can be awarded absent evidence

Holding

No damages are awardable where the Plaintiff adduced no evidence; submissions cannot substitute for evidence

Reasoning

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.

p. 4
02

Whether costs are payable and by whom

Holding

All Defendants are jointly and severally liable for costs; the 3rd Defendant's dereliction of statutory duty contributed to the nuisance

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.No damages are due and/or awardable to the Plaintiff
  2. 2.The Plaintiff is awarded costs of the suit, to be borne by the Defendants jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 42, 69, 70; Fourth Schedule
  • Environment and Land Court ActSection 13(3)
  • Physical and Land Use ActNot specified
  • Physical Planning Act (repealed)Not specified
  • Civil Procedure RulesOrder 17 Rule 2 [now Order 18 rule 2]
  • Rio De Janeiro Agreement on the Environment and Sustainable Development, 1992Precautionary, Prevention and Polluter Pays Principles

Cases cited (9)

  • Rylands vs Fletcher
    [1868] LR HL 330
  • M.C. Metha vs Union of India
    [1987] 1 SCC 395
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
  • Avenue Car Hire & Another vs. Slipha Wanjiru Muthegu
    Civil Appeal No. 302 of 1997
  • Muchami Mugeni vs. Elizabeth Wanjugu Mungara & Another
    Civil Appeal No. 141 of 1998
  • Kibos Distillers Ltd & 4 others vs Benson Ambuti Adega & 3 others
    [2020]
  • Farah Awad Gullet vs CMC Motors Group Ltd
    [2018]
  • James Koskei Chirchir versus Chairman Board of Governors Eldoret Polytechnic
    [2011] eKLR (Civil Appeal No. 211 of 2005)
  • S.K. Njuguna & another versus John Kiarie Waweru & another
    [2009] eKLR (Civil Appeal No. 219 of 2008)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.