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ELCDismissedNot stated in the judgment (plaint dated 11.12.2020, amended 16.10.2023)· [2025] KEELC 8182 (KLR)

Hassan & 3 others v Safaricom Ltd & another (Environment and Land Case 71A of 2022) [2025] KEELC 8182 (KLR)

Environment and Land Court
27 November 2025
3,290 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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A Mombasa court dismissed a family's pollution claim against a telecom facility because they brought no independent measurements proving harm beyond regulatory limits.

What this practically means

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Executive summary

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The plaintiffs, members of one family, sued the 1st defendant (operator of a BTS communication facility adjacent to the 1st plaintiff's Plot No. 7049 Section II Mainland North in Mtopanga, Mombasa) and the 2nd defendant (alleged regulator) seeking declarations of nuisance and pollution, general damages, and special damages for loss of profit (Kshs.4,301,018.40), repairs (Kshs.4,301,018.40) and professional fees (Kshs.30,000). They alleged excessive noise, smoke, radiation and vibrations from the 1st defendant's backup generator and BTS caused health problems, closure of the 1st plaintiff's business and structural cracks in his house. The 1st defendant denied liability, relying on its EIA by Mazingira Limited showing compliance with applicable standards; the 2nd defendant did not enter appearance. Framing its own issues under Order 15 rule 2, the court found the Mazingira report contained actual measurements of air quality, noise and non-ionizing radiation, all within legal and WHO limits, while the plaintiffs' Prudent report offered no contrary measurements. Medical reports did not causally link the plaintiffs' ailments to the emissions, and the generator ran only during power outages. On the structural claim, the court found the operative cause of the damage was the house's shallow foundation and uneven settlement, not the generator's occasional vibrations. The claim against the 2nd defendant, being derivative, also failed. The court dismissed the suit against the 1st defendant with costs and against the 2nd defendant with no order as to costs.

Key legal issues

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01

Whether the 1st defendant caused actionable air, noise and radiation pollution

Holding

No - emissions were within regulatory limits and plaintiffs tendered no contrary measurements

Reasoning

The Mazingira EIA report contained actual measurements of air quality, noise and non-ionizing radiation, all within national and international standards, including WHO limits. The plaintiffs' Prudent report was a critique without alternative measurements. Medical reports did not causally link their ailments to the emissions, and the generator was a backup used only during power outages.

p. 6
02

Whether vibrations from the generator caused structural damage to the plaintiffs' house

Holding

No - the operative cause of the structural deficiency was the shallow foundation and uneven settlement, not the occasional generator vibrations

Reasoning

The structural engineer's report showed the house was deficient in structural stiffness with a shallow foundation and uneven settlement possibly due to external vibration. The defendant's own wall, closer to the generator, remained intact; settlement could not plausibly arise over 14 years after construction from an occasional backup generator installed in 2014.

p. 6
03

Whether the 2nd defendant was liable for aiding and abetting

Holding

No - liability was dependent on the 1st defendant's liability, which failed

Reasoning

The claim against the 2nd defendant was that it aided and abetted the 1st defendant's violations. Having found no liability against the 1st defendant, the derivative claim against the 2nd defendant necessarily failed. Any challenge to authorisation belonged under EMCA's statutory mechanisms.

p. 7
04

Whether the plaintiffs were entitled to damages for loss of business

Holding

No - the shop closure could not reasonably be attributed to the defendant's operations

Reasoning

Having found no pollution liability, the claim for loss of income failed; occasional vibrations from a backup generator during power outages would not cause a reasonable businessman to close his shop indefinitely.

p. 6

Legal principles established

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  • The burden of proof in civil cases lies primarily on the claimant, on a balance of probabilities
  • Costs follow the event unless the court for good reason directs otherwise
  • A party aggrieved by an environmental authorisation must pursue the specific statutory challenge mechanisms under EMCA rather than a general damages suit

Court orders

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  1. 1.The plaintiffs' suit against the 1st defendant is dismissed with costs
  2. 2.The plaintiffs' suit against the 2nd defendant is dismissed with no order as to costs

Authorities

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Legislation

  • Evidence Act (Cap 80)Sections 107(1), 107(2) and 108
  • Civil Procedure Act (Cap 21)Section 27 (proviso)
  • Civil Procedure RulesOrder 15 rule 2
  • Environmental Management and Co-ordination (Noise and Excessive Vibration Pollutions) (Control) Regulations, 2009Legal Notice No. 61 of 2009
  • Environmental Management and Coordination (Air Quality) Regulations, 2014General
  • Environmental Management and Coordination ActStatutory mechanisms for challenging licences/permits

Cases cited (1)

  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
First-instance civil action under the plaint procedure; court framed issues under Order 15 rule 2 of the Civil Procedure Rules

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, "Hassan & 3 others v Safaricom Ltd & another (Environment and Land Case 71A of 2022) [2025] KEELC 8182 (KLR)", Case Analysis (2025). Not stated in the judgment (plaint dated 11.12.2020, amended 16.10.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8182/eng@2025-11-27

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