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ELCAllowedEnvironment & Land Case 112 of 2018· [2023] KEELC 17809 (KLR)

Conte v Mutua

Environment and Land Court
8 June 2023
3,249 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered a Malindi property owner to relocate his toilet after finding its foul smell was a legal nuisance, despite valid construction approvals.

What this practically means

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Executive summary

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The Plaintiff, proprietor of Chalet No. 14 at Karibuni Villas, Mambrui, sued her neighbour, the proprietor of Chalet No. 13, seeking a declaration that a water closet he constructed adjacent to her dining room was a nuisance and ought to be relocated, plus costs and interest. The Defendant's caretaker testified that the Defendant bought the chalet in 2013, carried out approved renovations in 2018, and that the toilet was over 10 metres from the Plaintiff's villa with proper septic and drainage systems. The Plaintiff relied on an Inspection Report on Public Nuisance and a Health, Safety and Sanitary Inspection report by the County Government of Kilifi, both of which found foul smell from the toilet of Villa 13 to be a public health nuisance under Section 118 of the Public Health Act (Cap 242) and recommended relocation of the toilet. The Defendant argued he had all requisite approvals, that the claim infringed his Article 40 property rights, and that the report makers were not called to testify. The court applied the Clerk & Lindsell definition of nuisance and the strict liability rule in Rylands v Fletcher, held that the unchallenged government reports confirmed the nuisance, and that construction approvals were no defence to a nuisance arising upon use of the toilet. Articles 42 and 70 of the Constitution and Section 3(3) of EMCA reinforced the Plaintiff's right to redress without proving loss. Judgment was entered for the Plaintiff with a declaration that the water closet is a nuisance and must be relocated within 45 days.

Key legal issues

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01

Whether the toilet constructed on Chalet No. 13 constitutes a nuisance

Holding

Yes - the Plaintiff proved on a balance of probabilities that the Defendant's toilet is a nuisance by producing foul smell, confirmed by two unchallenged government inspection reports.

Reasoning

The court applied the definition of nuisance in Clerk & Lindsell and the strict liability rule in Rylands v Fletcher. Two government agencies (Public Health Inspectorate and County Government of Kilifi) confirmed the foul smell as a public health nuisance under Section 118 of the Public Health Act and recommended relocation of the toilet. The Defendant did not challenge the reports nor show compliance with the recommendations. Approvals to construct were irrelevant since the nuisance arose upon completion and use of the toilet.

p. 3
02

Whether the Defendant's witness was competent to testify

Holding

The court did not expressly rule on this issue; DW1's evidence was considered and the suit decided on the reports and the law.

Reasoning

The Defendant's counsel argued competency relying on Order 1 Rule 12, Order 1 Rule 13(2), Order 7 Rule 5(b) and Order 9 Rule 2(a) and two authorities. The Plaintiff's counsel had urged that the caretaker's evidence be disregarded under Order 1 Rule 13. The court's analysis does not contain an express determination of this issue, proceeding instead to the nuisance question.

p. 4
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Whether the Defendant's constitutional right to property (Article 40) defeats the claim

Holding

No - the right to property does not shield the Defendant from a finding of nuisance affecting the Plaintiff's environment.

Reasoning

The Defendant argued that the claim sought to limit his Article 40 property rights, a right not limitable under Article 24 per Embakasi Management Limited. The court did not engage with this submission directly, instead grounding its decision on Articles 42 and 70, EMCA Section 3(3), the nuisance reports and strict liability, effectively subordinating the property argument to environmental and nuisance law.

p. 6

Legal principles established

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  • A person who brings onto his land something likely to do mischief if it escapes is strictly liable for damage caused by its escape (rule in Rylands v Fletcher).
  • Statutory inspection reports confirming a nuisance that are not challenged remain valid and bind the party against whom recommendations were made.
  • A plaintiff alleging breach of the right to a clean and healthy environment need not demonstrate loss or damage.
  • Approvals from construction authorities are no defence to a nuisance arising after completion and use of the structure.

Court orders

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  1. 1.A declaration that the Defendant's water closet on Chalet No. 14 adjacent to the Plaintiff's dining room is a nuisance and ought to be relocated within 45 days

Authorities

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Legislation

  • Public Health Act (Cap 242)Section 118
  • Constitution of Kenya, 2010Article 40, Article 40(2), Article 42, Article 70, Article 24
  • Environment Management and Coordination Act (EMCA)Section 3(3)
  • Civil Procedure RulesOrder 1 Rule 12, Order 1 Rule 13, Order 1 Rule 13(2), Order 7 Rule 5(b), Order 9 Rule 2(a), Order 21 [1]

Cases cited (4)

  • Grace Monica Aketch Onyango v Arthur William Ogwayo & Another
    [2020] eKLR

    Competency of witnesses to give evidence with authority

  • John Kamau Gachina v Sofia Salim Karama
    [2016] eKLR

    Competency of witnesses to give evidence with authority

  • Embakasi Management Limited & 8 others v Imperial Bank Limited (In Receivership) & another
    (Civil Appeal 113 of 2019) [2022] KECA 7 (KLR)

    Right to property under Article 40(2) cannot be limited under Article 24

  • Rylands v Fletcher
    [1861-73] ALL ER REP 1

    Strict liability for escape of substances brought onto land

Jurisdiction invoked
Environment and Land Court jurisdiction under EMCA Section 3(3) and Article 70 of the Constitution

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, "Conte v Mutua", Case Analysis (2023). Environment & Land Case 112 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17809/eng@2023-06-08

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