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ELCDismissed· [2022] KEELC 2904 (KLR)

Kiarie v Safaricom (K) Limited (Environment & Land Case 353 of 2019) [2022] KEELC 2904 (KLR)

High Court of Kenya (Environment and Land Court jurisdiction, first instance)
28 June 2022
6,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a landowner's nuisance claim against Safaricom because she could not prove her allegations, including with credible expert evidence.

What this practically means

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Executive summary

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The Plaintiff sued Safaricom (K) Ltd, alleging that the Defendant's Base Transmitter Station erected since 2005 on plot No. 42415B adjacent to her plots at Dandora caused nuisance (smoke, noise, vibrations from the generator, storm water diversion, harmful radio waves, obstruction of sunlight and sewer diversion), fraud and illegality (erection on allegedly public parking/utility land without County or NEMA approvals), negligence, health damage (hypertension, stress, headaches, tinnitus and related conditions) and loss of rental income. She sought general damages, special damages for lost rental income, a mandatory injunction to cease operating and demolish the BTS, costs and interest. The Defendant denied the claim, asserting it leased plot 42415B from one Wycliffe Omusaka, conducted environmental audits in 2009, 2012 and 2017, and that NEMA inspections and independent audits found noise and vibrations within regulatory limits. The court framed five issues: public land, nuisance, health nexus, building damage from vibrations, and loss of rental income. It found the Plaintiff failed to prove the land was public (no search, survey evidence or County testimony; the 2005 City Council notice inconclusive); failed to prove any nuisance (generator was back-up only, Defendant's audits showed permissible levels, no scientific evidence of radiation harm); the doctor's opinion was rejected as lacking expertise and factual substratum; building damage was not proved; and loss of rental income was neither specifically pleaded nor strictly proved. The suit was dismissed in its entirety with costs to the Defendant.

Key legal issues

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01

Burden of proving the land is public

Holding

Plaintiff failed to prove the BTS was erected on public land

Reasoning

The Plaintiff alleged the plot was a public parking/play area but produced only an inconclusive 2005 City Council notice that did not even reference the plot number. She did not call the County Government, the landlord, or produce a search or survey evidence. Under sections 107 and 108 of the Evidence Act the burden was hers and it was not discharged.

p. 7
02

Whether nuisances were established

Holding

No nuisance proved; alleged noise, smoke, vibrations, storm water, sunlight, radio wave and sewer claims unsupported

Reasoning

The generator was a mere back-up to KPLC power, and the Defendant's NEMA-accredited audits showed noise and vibrations within permissible limits. The Plaintiff produced no contrary evidence of intensity, no proof of storm water diversion, no evidence on sunlight or sewer blockage, and no scientific evidence on harmful radio waves.

p. 9
03

Nexus between nuisances and health damage

Holding

Doctor's opinion rejected; no causal nexus established

Reasoning

Dr Kung'u relied on the Plaintiff's history, never visited the premises, saw no expert scientific basis for his opinion, admitted the conditions could have been caused by anything else, and had no expertise in the field. He was held unsuitable to testify as an expert and his report of little value.

p. 10
04

Damage to building from vibrations

Holding

Not proved; Defendant's audit showed vibrations of 0.21 cm/s against a damage threshold of 10-15 cm/s and Plaintiff adduced no contradicting expert report

Reasoning

The Plaintiff had to prove the cracks existed and that they were caused or accelerated by BTS vibrations. The Defendant's NEMA-certified study found the vibration levels unlikely to damage any building, and the Plaintiff presented no evidence to contradict it.

p. 11
05

Loss of rental income

Holding

Special damages claim failed for lack of specific pleading and strict proof

Reasoning

The Plaintiff could not state the rent she collects, the occupancy level, or produce receipts. Applying settled authority, special damages must be pleaded with particularity and strictly proved with credible documentary evidence, not left to abstract figures or conjecture.

p. 12

Legal principles established

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  • He who alleges must prove; an allegation of encroachment on public land must be proved by the person making it
  • A nuisance claim requires proof of some damage; unlike trespass it is not actionable per se
  • Expert opinion is worthless unless founded on a substratum of proved facts
  • Special damages must be specifically pleaded and strictly proved with credible documentary evidence

Court orders

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  1. 1.The Plaintiff's suit is dismissed in its entirety.
  2. 2.Costs of the suit awarded to the Defendant.

Authorities

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Legislation

  • Constitution of KenyaArticle 62; Fourth Schedule (Distribution of functions between the National Government and the County Governments)
  • Evidence ActSections 107 and 108
  • Environmental (Noise and Excessive Vibration Pollution Control) Regulations, 2009Section 31(1)(a)

Cases cited (9)

  • Lyford Gitari Leonard –vs- Weru Tea Factory
    (2017) eKLR
  • Nakuru Industries Ltd --vs- S.S. Mehta & Sons
    (2016) eKLR
  • Stephen Kanini Wang'ondu –vs- The Ark Ltd
    (2016) eKLR
  • Coast Bus Ltd -vs- Sisco E. Murunga Danyi & 2 others
    Civil Appeal No. 192 of 1992
  • Capital Fish Limited –vs- Kenya Power Lighting Company Limited
    (2016) eKLR
  • David Bagine Vs Martin Bundi
    (1997) eKLR
  • Bonham Carter vs Hyde Park Hotel Limited
    (1948) 64 TLR 177
  • Kenya Women Finance Ltd vs Martha Wangari Kamau
    (2021) eKLR
  • Union Bank of Nigeria PLC –Vs- Alhaji Adams Ayabule & Another
    (2011) JELR 48225(SC) (SC 221/2005(16/2/2011)
Jurisdiction invoked
Original civil jurisdiction over a claim in nuisance, negligence and trespass alleging interference with land; no specific enabling provision cited in the judgment

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, "Kiarie v Safaricom (K) Limited (Environment & Land Case 353 of 2019) [2022] KEELC 2904 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2904/eng@2022-06-28

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