Kiarie v Safaricom (K) Limited (Environment & Land Case 353 of 2019) [2022] KEELC 2904 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Burden of proving the land is public
Plaintiff failed to prove the BTS was erected on public land
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.
Whether nuisances were established
No nuisance proved; alleged noise, smoke, vibrations, storm water, sunlight, radio wave and sewer claims unsupported
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.
Nexus between nuisances and health damage
Doctor's opinion rejected; no causal nexus established
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.
Damage to building from vibrations
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
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.
Loss of rental income
Special damages claim failed for lack of specific pleading and strict proof
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.
Legal principles established
#- 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
#- 1.The Plaintiff's suit is dismissed in its entirety.
- 2.Costs of the suit awarded to the Defendant.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.