Mutua v Conte

a result of foul smell emanating from the toilet of House No. 13, which was likely to increase as usage continued. The report further noted the existence of a septic tank located on the side of House No. 14, which posed a potential future nuisance, and which could deny the occupants of House No. 14 the comfort of their house if not addressed. 3. The report recommended that the owner of House No. 13 consider adjusting the plan and relocating the toilet to resolve the nuisance, and concluded that the toilet in House No. 13 was a nuisance to the occupants and users of the dining area in House No. 14. The Respondent also relied on a Health, Safety and Sanitary Inspection Report prepared by the County Government of Kili dated 29th March 2019, which indicated that a foul smell emanated from the toilet of Villa No. 13 at the time of inspection and classied the same as a public health nuisance under Section 118 of the Public Health Act. Among the recommendations made were that the owner of House No. 13 relocates the toilet and carry out the stipulated health requirements to abate the nuisance of foul smell, dust, noise, and pollution, all of which were categorized as public health nuisances. On cross-examination, the Respondent stated that she had never seen a surveyor’s report dated 12th April 2018 and acknowledged that the toilet complained of was located on the Appellant’s property, albeit in close proximity to her dining room. The Appellant opposed the claim and denied that the construction and use of the water closet on Chalet No.13 constituted a nuisance, or violated the Respondent’s rights. 4. The Appellant maintained that he is the lawful proprietor of Chalet No. 13 at Karibuni Villas, Mambrui, and that all renovations and additions undertaken on the property were lawful, approved, and conned strictly within the boundaries of his own premises. During the hearing, Joseph Dzuya Ria, DW1, testied on behalf of the Appellant and adopted his witness statement as evidence in chief. DW1 stated that he was the Appellant’s caretaker, and that the renovations that included the addition of a balcony, a toilet, and an extension to the villa were carried out on the chalet in 2018 over a period of approximately three months. He testied that the Respondent’s chalet was more than ten meters away from the Appellant’s, and that the toilet which was wooden, was attached to the building, and was connected to a septic tank and drainage or sewerage system. DW1 further testied that the Appellant had obtained all the requisite approvals for the renovations, expansions, and additions from the relevant government authorities in Kili County; and that they were conned to the Appellant’s property and did not violate the Respondent’s use or enjoyment of her property, nor did they contravene any laws or regulations. On cross-examination, DW1 stated that management approval for renovations could be verbal or written; that the title allowed the owner exclusive use of the property; and that he did not understand how the toilet constituted a nuisance to the Respondent. 5. On re-examination, he stated that the management had granted the Appellant permission to renovate, and that the management had never complained about the renovations. Upon consideration of the pleadings, the oral and documentary evidence, and the submissions led by counsel for both parties, the trial court identied the sole issue for determination as whether the toilet constructed by the Appellant on Chalet No. 13 constituted a nuisance, particularly through the emission of a foul smell so as to interfere with the Respondent’s use and enjoyment of her property. The court observed that the dispute involved neighboring proprietors within the same development, Karibuni Villas, Mambrui, with the Respondent owning Chalet No. 14 and the Appellant owning the adjoining Chalet No. 13, on which the Appellant had constructed a water closet or toilet that emitted https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 2

page 2 of 15

a foul smell, thereby creating a health hazard and substantially interfering with the Respondent’s comfort and enjoyment of her property. In addressing the issue of nuisance, the court found as a matter of fact that the Public Health Inspectorate and the Health, Safety and Sanitary Inspection reports prepared by the County Government of Kili that the toilet complained of was constructed approximately ve meters from the Respondent’s house. 6. The court further found that both inspection reports conrmed the existence of foul smell emanating from the Appellant’s toilet, which they classied as a public health nuisance under Section 118 of the Public Health Act. The reports further recommended relocation of the toilet as the appropriate remedial measure. It was observed that, since the reports were not challenged by the Appellant, either through contrary expert evidence or by calling the makers of the reports for cross-examination, their ndings remained valid and uncontroverted. The court also took into account the Appellant’s contention that he had obtained approvals from relevant authorities before undertaking the construction and held that the approvals did not constitute a defence to a claim in nuisance. The court observed that the nuisance complained of arose after the completion and continued usage of the toilet, and that compliance with approval processes could not excuse the creation or continuation of a condition that interfered with a neighbor’s enjoyment of property or endangered public health; that the Appellant had not demonstrated compliance with the recommendations issued by the inspecting authorities to abate the nuisance. As such, the court concluded that the Appellant’s acts had caused harm to the Respondent by denying her the comfort and enjoyment of her property. 7. The court relied on Section 3 of the Environment Management and Coordination Act, which empowers the Environment and Land Court to issue orders aimed at preventing, stopping, or remedying environmental harm. As a consequence, the court rejected the Appellant’s argument that the Respondent was required to prove actual loss or damage, and found that the existence of a proven nuisance was sucient to warrant judicial intervention. The court further found that the Appellant’s reliance on the right to property under Article 40 of the Constitution could not override the Respondent’s right to a clean and healthy environment where a nuisance had been established. Ultimately, the Court determined that the Respondent had proved her case against the Appellant on a balance of probabilities that the toilet constructed on Chalet No. 13 constituted a nuisance to the Respondent, and that the appropriate remedy was relocation of the water closet. Accordingly, the court issued a declaration to that eect and ordered the Appellant to relocate the toilet within forty-ve days, with costs awarded to the Respondent. 8. Aggrieved, the Appellant has led an appeal on grounds that: the learned Judge was in error in law and fact by nding that the Appellant’s ultramodern water closet on Chalet No. 14, Karibuni Villas, Mambrui in Kili County is a nuisance to the Respondent; in ordering the Appellant to relocate the water closet within 45 days of the judgment without taking due consideration that the Appellant had obtained all the requisite approvals from all the relevant agencies before constructing and renovating the ultra-modern water closet; in disregarding the Appellant’s documentary evidence while relying on the Respondent’s documents; in failing to nd that the Respondent’s claim was lodged after completion of the renovation of the ultra-modern water closet, while there was no complaint lodged during the renovation and construction; in nding that the Appellant was obligated to comply with recommendations made in the Inspection Report for Public Nuisance as well as the Health Safety and Sanitary Inspection Report; in disregarding the fact that the post construction inspections were unilaterally commissioned by the Respondent for the purpose of the court proceedings, and without involving the Appellant; in failing to take into account the fact that the Appellant had obtained the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 3

page 3 of 15

requisite approvals before commencing the construction of the ultra-modern water closet within his property; and in invoking and enforcing Article 70 of the Constitution while the Respondent had not made such prayers in her pleadings. 9. The Appellant and the Respondent led written submissions. When the appeal came up for hearing on a virtual platform, learned counsel Ms. Kyania holding brief for Dr. Musau appeared for the Appellant while learned counsel Mr. Mwadilo appeared for the Respondent. In their written submissions, counsel for the Appellant submitted that the trial court was wrong in nding that the Appellant’s ultra-modern water closet constructed on Chalet No. 13 at Karibuni Villas constituted a nuisance, and in ordering its relocation within forty-ve days. Counsel contended that the learned Judge failed to properly evaluate the evidence on record, misapplied the law on nuisance and constitutional environmental rights, and issued disproportionate remedies that unjustiably infringed upon the Appellant’s right to property. Counsel further submitted that the trial court failed to accord due weight to the undisputed fact that the Appellant obtained all requisite approvals from the County Government of Kili and the National Environment Management Authority prior to construction, and that an Environmental Impact Assessment that conrmed the project was not hazardous was undertaken before commencing construction; that there was public participation prior to construction, and that these approvals created a legitimate expectation that the Appellant would enjoy use of the facility without subsequent judicial interference, unless the approvals were lawfully revoked. According to counsel, the trial court erroneously relied on the post-construction inspection report produced by the Respondent while disregarding the Appellant’s documentary evidence demonstrating compliance with the statutory construction and environmental requirements. It was submitted that, absent proof of fraud, misrepresentation or a change in law, the Appellant could not lawfully be punished retroactively after complying with all statutory protocols. Counsel further submitted that the trial court’s holding that the toilet constituted a nuisance in the absence of scientically veriable or sustained evidence of substantial interference was erroneous; that actionable nuisance requires proof of substantial, unreasonable, and continuous interference, and that the Respondent failed to meet this threshold; that the Respondent did not complain during the construction phase and failed to demonstrate repeated or intolerable intrusion beyond subjective sensory discomfort; and that the mere presence of a toilet within close proximity did not of itself amount to nuisance. It was further submitted that the trial court improperly elevated ordinary residential improvements, namely a water closet and septic system, into actionable nuisance without properly balancing the reasonableness of the Appellant’s use of his land against the Respondent’s complaints. Counsel contended that the post-construction inspection reports were not subjected to crossexamination; that their authors were not called to testify; and that the recommendations contained therein were administrative in nature and not determinative of nuisance in law. Counsel maintained that the trial court wrongly treated the reports as conclusive proof rather than as preliminary indicators requiring further evidentiary foundation, including expert testimony or sustained environmental sampling; that, further, the trial court misapplied the doctrine in Rylands vs Fletcher [1861–73] All ER Rep 1 by extending strict liability principles to ordinary sanitary installations; and that the Appellant did not introduce any dangerous or abnormal substance onto his land, but merely installed standard sanitary facilities after obtaining all statutory approvals. With regard to the trial court’s application of constitutional and environmental law, it was argued that, although Article 42 of the Constitution and the Environment Management and Coordination Act protect the right to a clean and healthy environment, enforcement of those rights must follow https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 4

page 4 of 15

proper public interest mechanisms, and must demonstrate ecological or environmental harm rather than a purely private dispute. Finally, counsel submitted that, even if nuisance had been established, the relocation order was harsh, excessive and disproportionate; that the trial court failed to consider less intrusive mitigation measures, such as odour control, fencing, or structural alteration, despite evidence that relocation would occasion the Appellant substantial loss, having constructed the toilet after obtaining lawful approvals; and that the recommendations in the inspection reports were not mandatory were never communicated to the Appellant, and included alternative mitigation measures, such as use of disinfectants, which the trial court failed to consider. It was contended that the relocation order amounted to arbitrary deprivation of property contrary to Article 40 of the Constitution. 10. In her written submissions, counsel for the Respondent submitted that the appeal was devoid of merit, and that the trial court rightly found that the Appellant’s water closet constituted a nuisance and in ordering its relocation; and that the Respondent lawfully commenced the suit by a plaint dated 21st May 2018 seeking injunctive relief to restrain the Appellant from proceeding with the construction of a water closet next to the Respondent’s dining area on Chalet No. 14 and, despite being served with pleadings and being fully aware of the suit, the Appellant proceeded with construction in blatant disregard of the doctrine of lis pendens. As a consequence, the Respondent withdrew her interlocutory application after the construction had been overtaken by events and, with leave of the trial court, led an Amended Plaint dated 4th February 2021 seeking a declaratory order that the Appellant’s water closet constituted a nuisance and ought to be relocated. Counsel further submitted that the learned trial Judge correctly found that the Appellant’s water closet was a nuisance, and that the trial court properly applied the rule in Rylands vs Fletcher (supra). Counsel emphasized that, under the doctrine, liability does not depend on negligence, but on whether the Appellant’s acts occasioned damage or interference; and that the trial court correctly found that the foul smell emanating from the Appellant’s toilet interfered with the Respondent’s enjoyment of her property. 11. Relying on Section 118(c) of the Public Health Act, which expressly classies water closets, septic tanks, and similar installations as nuisances where they are oensive or dangerous to health by reason of their state, situation, or construction, counsel submitted that the Respondent produced two concrete inspection reports which conclusively established the existence of such a nuisance. It was submitted that the rst was an Inspection Report on Public Nuisance between House No. 13 and House No. 14 at Karibuni Villas, which established that the Appellant’s toilet was approximately 1.5 metres from the Respondent’s dining area and emitted a foul odour, while the second was a Health, Safety and Sanitary Inspection Report dated 29th March 2019, which similarly indicated that a foul smell was being emitted and recommended relocation of the toilet. It was submitted that the Appellant neither challenged nor rebutted these reports, and that, therefore, the Respondent discharged her burden of proof. Counsel went on to submit that the trial court was fully entitled to order relocation of the water closet notwithstanding the Appellant’s claim that he had obtained approvals prior to construction. Reliance was placed on Section 124(1) of the Public Health Act, which empowers a court, upon proof of nuisance, to order demolition or alteration of a structure where repairs or alterations are unlikely to remove the nuisance; that the 45 days period granted by the trial Counsel went on to submit that the trial court was fully entitled to order relocation of the water closet notwithstanding the Appellant’s claim that he had obtained approvals prior to construction. Reliance was placed on Section 124(1) of the Public Health Act, which empowers a court, upon proof of nuisance, to order demolition or alteration of a structure where repairs or alterations are unlikely https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 5

page 5 of 15

to remove the nuisance; that the 45 days period granted by the trial court was reasonable, ample, and well in excess of the statutory minimum 12. The English Court of Appeal decision in Wheeler vs JJ Saunders Ltd [1995] 3 WLR 466 was relied upon for the proposition that the grant of planning permission does not immunize a developer from liability in nuisance. It was asserted that approvals and permits do not legalize a nuisance, and cannot defeat a private law claim once nuisance is established; and that, further, Section 66(2) of the Environmental Management and Coordination Act (EMCA), expressly provides that the issuance of an environmental impact assessment license does not aord a defence to civil proceedings arising from the manner in which a project is executed. As concerns the Appellant’s documentary evidence, counsel submitted that the trial court duly considered this evidence alongside the oral testimony of the Appellant’s only witness; that pursuant to Section 109 of the Evidence Act, the burden shifted to the Appellant to demonstrate that his water closet was not a nuisance once the Respondent adduced prima facie evidence; that the Appellant failed to rebut the inspection reports or provide a counter-report; and that reliance on approvals alone was insucient. 13. In response to the assertion that the claim was led after completion of construction, counsel submitted that, at the time the suit was instituted, the construction had not been completed, and photographic evidence annexed to the Respondent’s adavit demonstrated ongoing works; that, even if the nuisance crystallized after completion, the law recognizes claims for continuing nuisance. The case of Bliss vs Hall [1838] 4 Bing NC 183, where the court rejected the defence of “coming to the nuisance” and upheld liability for an ongoing nuisance, was relied upon to support this position. 14. Regarding the obligation to comply with the recommendations in the inspection reports, Section 3(3) of the Environment Management and Coordination Act, which empowers the Environment and Land Court to issue orders preventing, stopping, or remedying acts deleterious to the environment, was cited; that, further, it was submitted that Sections 116, 117, and 124(1) of the Public Health Act impose duties on authorities and courts to abate nuisances and authorize demolition or alteration where necessary; that the reports which were unchallenged, recommended relocation, and that the Appellant did not propose any mitigation measures to remove the nuisance; and that the Appellant is barred from challenging the inspection reports at the appellate stage having failed to contest them during the trial. Counsel submitted that the reports were independently generated by public ocers upon complaint, following physical inspection of the premises, and that the Appellant failed to produce any counter- report; that therefore, the principle that appellate courts should not entertain issues not raised or canvassed before the trial court was applicable to the circumstances of this case. 15. In support of this position, counsel relied on this Court’s decision in the case of Republic vs Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & Others ex parte Tom Mbaluto [2018] eKLR, as cited with approval in Frera Engineering Company Limited vs Morris Mureithi Mutembe [2020] eKLR, where the Court emphasized that appellate jurisdiction is conned to matters raised and determined at rst instance. 16. In conclusion, counsel submitted that, although the Respondent’s claim was grounded in the tort of private nuisance, the trial court properly invoked Articles 42 and 70 of the Constitution to enforce the Respondent’s right to a clean and healthy environment; that nuisance caused by foul smell directly infringes environmental rights; and that the trial court was entitled to grant constitutional protection incidental to the relief sought. 17. This is a rst appeal where the duty of the rst appellate court is to re- evaluate the evidence and come to our own independent conclusions. However, we caution ourselves that, in doing so, we must bear https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 6

page 6 of 15

in mind that we did not hear the witnesses nor observe their demeanour. Consequently, the court may only interfere with the ndings of the trial Judge if the judge failed to take into account particular circumstances or based his impression on demeanour of witnesses which was inconsistent with the evidence. See Neepu Auto Spares Limited vs Narendra Chaganlal Solanki & 3 Others [2014] eKLR. 18. Having considered the record and memorandum of appeal, as well as the parties’ submissions, the issues that arise for determination are: i. Whether the learned trial Judge erred in law and fact in nding that the Appellant’s water closet constituted a nuisance to the Respondent; ii. Whether the trial court properly evaluated the evidence on record, including whether it disregarded the Appellant’s evidence and placed undue reliance on the Respondent’s inspection reports, particularly those allegedly procured unilaterally; iii. Whether the approvals obtained by the Appellant from relevant authorities constituted a defence to the claim in nuisance, or were improperly disregarded by the trial court; iv. Whether the trial court misapplied the applicable legal principles on nuisance, including the doctrine in Rylands vs Fletcher and the burden of proof; v. Whether the learned Judge improperly invoked and applied Articles 42 and 70 of the Constitution in the absence of specic pleadings; and vi. Whether the order directing relocation of the water closet was excessive, disproportionate, or otherwise unjustied in the circumstances. 19. Beginning with the question of whether the Appellant’s water closet constituted a nuisance to the Respondent, the Appellant’s case is that the water closet constructed on Chalet No. 13 did not constitute a nuisance as the structure was lawfully erected within the Appellant’s property after obtaining all requisite 20. approvals from the relevant authorities, including environmental and county approvals, and that the trial court failed to give due weight to this evidence. The Appellant further argued that no sucient or scientically veriable evidence was tendered to demonstrate substantial or unreasonable interference with the Respondent’s use and enjoyment of her property; that the Respondent did not raise any complaint during the construction, and that the inspection reports relied upon were unilaterally procured, not subjected to cross-examination, and ought not to have been treated as conclusive proof of nuisance; and that the learned Judge misapplied the law on nuisance by elevating an ordinary sanitary installation into a nuisance, and by relying on post-construction inspection reports while disregarding the Appellant’s documentary evidence demonstrating compliance with statutory requirements. On the other hand, the Respondent’s case is that the water closet constructed in close proximity to her dining area emitted a foul smell, thereby interfering with her comfort and enjoyment of her property, and which the two inspection reports prepared by public health authorities classied as a public health nuisance and recommended relocation of the toilet; that the Appellant failed to rebut the inspection reports or produce any expert evidence to counter their ndings; that the approvals obtained by the Appellant do not constitute a defence to nuisance once interference is established; and that the trial court properly applied the law in concluding that the Respondent had proved her case on a balance of probabilities. 21. In eect, the dispute between the parties concerned the tort of nuisance, where the Respondent’s claim was that the toilet or pit latrine constructed by the Appellant emitted a foul smell thereby interfering with her comfort and enjoyment of her property. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 7

page 7 of 15

The Black’s Law Dictionary, 10th Edition, at page 1234, denes a ‘nuisance’ generally as: “ anything that works or causes injury, damage, hurt, inconvenience, annoyance or120 discomforting to one in the enjoyment of his legitimate and reasonable rights of person or property; or that which is unauthorized, immoral, indecent, oensive to the senses, noxious unwholesome, unreasonable, tortious or unwarranted or which injures, endangers or damages one in an essential or material degree in, or which materially interferes with, his legitimate rights to the enjoyment of life, health, comfort, or property, real or personal.” Clerk and Lindsell on Torts, page 1354 para 24-01, denes ‘nuisance’ as: “an act or omission which is an interference with, disturbance of, or annoyance to, a person’s rights used or enjoyed in connection with land. It is caused, usually when the consequences of130 a person’s actions on his land are not conned to the land, but escape to his neighbors’ land causing an encroachment and causing physical damage or unduly interfering with the neighbors’ use and enjoyment of his land.” More specically, the issue turned on a private nuisance since the dispute was concerned with foul emissions from the Appellant’s toilet, which resulted in continued interference with the Respondent’s enjoyment of her property. At page 1235, Black’s Law Dictionary 10th Edition, Private nuisance is dened as: “that which aects a private right not common to the public or that causes a special injury to a person or to property of a single person or a determinate number of people” 22. In Bullen & Leake & Jacobs on Precedents and pleadings Sweet and Maxwell, 1990 at page 700 and 701, it was observed that: “ Nuisance is concerned with conditions and activities which interfere with the use or enjoyment of land and that courts must balance the competing interests of neighboring land owners and adjust their respective rights and privileges” Burnett- Hall on Environmental Law, 2nd edition describes private nuisance as a tort in respect of interference with rights in respect of land, which may aect the land itself, or the claimant’s use or enjoyment of that land, or rights connected with the land. In Bamford v Turnley (1862) 3 B&S 66, Bramwell B formulated a test to ascertain when an objectionable use of land will constitute a nuisance. Bramwell B said: “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.” An article by Stimmel, Stimmel and Smith Law Oce found at hhp://stimmel-law.com observed: “…a landowner is relieved from liability for injuries caused to adjoining owner if the land owner makes a “reasonable use” of his/her property. However, the rule which allows a person to use his/her own property in such a manner to cause injury to another’s property without any liability will be limited and is carefully dened in the courts and by statute. A land owner’s use of his/her property becomes unreasonable and unlawful if it constitutes an appropriation of the adjoining land if it deprives the reasonable enjoyment of the adjoining owner of his/her property to a material degree (Brownsey vs. General Printing Ink Corp.,118 N.J.L 505 (Sup. ct. 1937).” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 8

page 8 of 15

Additionally, this Court in the case of Haroun O. Nyamboki vs Catholic 23. University of Eastern Africa (A.M.E.C.E.A) [2017] KECA 744 (KLR) held that: “ Private nuisance usually occurs when the consequences of a person lawfully utilizing his land extends beyond his land onto his neighbour’s land causing either damage thereon or interference with the enjoyment/utilization of the same.” In the case of Hunter vs Canary Wharf Ltd [1997] AC 655, 685 (‘Hunter’) Lord Go stated that: “ [F]or an action in private nuisance to lie in respect of interference with the plainti’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms — noise, dirt, fumes, a noxious smell, vibrations, and suchlike.” And in Fearn vs The Board of Trustees of the Tate Gallery [2023] UKSC 4 24. the Court set out the core principles of the tort of private nuisance as: “(i) The tort of private nuisance is a tort to land (ie it is a property tort). It is concerned with the wrongful interference with the claimant’s enjoyment of rights over land (and the concept of land includes buildings and rights, such as easements, which attach in law to the land). Only a person with a legal interest in the land can sue and the law is concerned to protect the claimant against a diminution in the utility and amenity value of the land. ii. Nuisance can be caused by any means and does not require a physical invasion. Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance. The interference may be by something tangible (the example given being Japanese knotweed) or something intangible such as fumes, noise, vibration or an unpleasant smell. It can include intrusive overlooking. iii. The interference must be substantial and must be an interference with the ordinary use of the claimant’s land. The use of the defendant’s land must also go beyond what is ordinary use. At a general level, what is involved is the balancing of the conicting rights of landowners. This has sometimes been expressed by saying that the interference with the use and enjoyment of land must be “unlawful” or “undue” or, although Lord Leggatt advised caution in using this term, “unreasonable”. The instant record reveals that the Respondent produced two inspection reports from competent public authorities, both of which conrmed the existence of foul odour emanating from the Appellant’s toilet, which they classied as a public health nuisance. The reports relied upon were an Inspection 25. Report on Public Nuisance between House No. 13 (the Appellant’s) and House No. 14 (the Respondent’s), which indicated that the nuisance arose from foul smell emanating from the toilet in House No. 13, and observed that the level of nuisance was likely to increase with continued usage. It further identied a septic tank adjacent to House No. 14 as a potential future source of nuisance https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 9

page 9 of 15

and concluded that, unless remedied, the condition would deny the occupants of House No. 14 the comfort of their residence. The report expressly recommended relocation of the toilet, and concluded that the toilet constituted a nuisance to the occupants and users of the dining area in House No. 14. The second report relied upon was a Health, Safety and Sanitary Inspection Report prepared by the County Government of Kili, which similarly indicated that a foul smell emanated from the toilet in Villa No. 13 at the time of inspection, and which was classied as a public health nuisance under Section 118 of the Public Health Act. It also recommended, inter alia, that the owner of House No. 13 relocate the toilet and undertake measures to abate the nuisance arising from foul smell, pollution, dust, and noise. Of signicance is that, these reports were not at any time rebutted by the Appellant or through any counter-expert evidence or alternative inspection report. Without any evidence controverting the reports, the learned trial Judge was correct in nding that the Appellant’s toilet that was situated in close 26. proximity to the Respondent’s dining area, and from which a foul smell emanated, met the threshold necessary to prove the tort of nuisance. On the next issue of whether the learned Judge properly evaluated the evidence, it becomes apparent from the record that the trial court considered both parties’ evidence. The Appellant’s case, as presented through DW1, was that the construction was undertaken within his property with requisite approvals, and did not interfere with the Respondent’s enjoyment of her property. In this regard, the trial court expressly appreciated that the Appellant had obtained approvals, but found that this did not negate the fact of nuisance once established. As concerns the inspection reports, the record shows that they were produced as exhibits without objection. It is also apparent from the record that the Appellant did not apply to call the makers of the reports for cross- examination, nor did he seek to challenge their admissibility or probative value at the trial. More importantly, the Appellant did not tender any counter-report or expert evidence to controvert the ndings of the reports. While the reports may have been as a result of a complaint from the Respondent, there is no evidence disproving their preparation by public ocers acting within their statutory mandate of inspection and reporting on public health conditions. Their evidentiary value cannot therefore be discounted merely on the basis that the 27. initial complaint originated from one party. It is not also lost on us that the trial court did not treat the reports as conclusive in isolation, but rather, the trial Judge considered them alongside the entirety of the evidence on record, including the Appellant’s documentary and oral testimony. 28. It is a settled principle that an appellate court will not interfere with a trial court’s ndings of fact, unless it is demonstrated that the court failed to take into account relevant matters, took into account irrelevant matters, or that its conclusions are plainly wrong. See Peters vs Sunday Post Ltd [1958] EA 424. Since no such misdirection has been demonstrated in this case, we are satised that the learned Judge properly evaluated the evidence on record and came to the right conclusion that nuisance was established after considering both the Appellant’s and the Respondent’s evidence. 29. Turning to the issue as to whether the approvals obtained by the Appellant from relevant authorities constituted a defence to the claim of nuisance. The Appellant’s case is that he obtained approvals from the relevant authorities, including the County Government of Kili and environmental agencies, and that such approvals created a legitimate expectation that use of his property would not subsequently be interfered with. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 10

page 10 of 15

30. The trial court held that nuisance arises from the eect of the activity complained of and not merely from the legality of its source. 31. The law on this question is settled. The mere fact that an activity is authorized by statute or has received approval from a public authority does not of itself immunize a party from liability in nuisance. In Wheeler vs JJ Saunders Ltd (supra), it was held that planning permission does not authorize the commission of a nuisance. See also Coventry vs Lawrence [2014] UKSC 13 and Gillingham Council vs Medway Dock Co. [1993] QB 343 where it was held that the grant of planning permission does not aect the private law rights of third parties. 32. The rationale behind the holding is that private nuisance is concerned with the eect of the activity on neighbouring property, not merely its legality or compliance with regulatory requirements. A lawful activity may nonetheless become unlawful if it results in substantial and unreasonable interference with another’s use and enjoyment of land. In the present case, while the Appellant’s case was that he had obtained approvals for construction. However, the trial court’s nding on the basis of evidence, was that the despite the approvals, it was the subsequent and continued usage of the water closet or pit latrine that resulted in emission of a foul smell that interfered with the Respondent’s enjoyment of her property. The existence of approvals did not negate that factual nding. Clearly, the learned trial Judge did not disregard the Appellant’s approvals, but rather correctly held that such approvals were not a defence once nuisance was established. In our view, we are satised that the learned Judge properly appreciated that compliance with statutory requirements does not license a party to perpetuate a situation that constitutes a nuisance to others. 33. The next issue concerned the Appellant’s complaint that the trial court misapplied the applicable legal principles of the doctrine in Rylands vs Fletcher (supra) on the burden of proof to circumstances that did not warrant strict liability, and by failing to properly apply the burden and standard of proof in a claim founded on nuisance. 34. In addressing this issue, the question that begs is whether the tort of private nuisance was proved to the required standard. In the textbook Wineld on Tort Eighth Edition pages 353 - 367, private nuisance is described as an unlawful interference with a person’s use or enjoyment of land. Such interference may be of either a continuous or recurrent nature, such as stenches and smoke, which qualify under that description. And as to whether a nuisance is actionable or not will depend upon a variety of considerations, in particular, the character of the defendant’s conduct and a balancing of conicting interests (i.e. the right of the defendant to enjoy his property as he wishes as against the right of his neighbours to enjoy theirs without interference). 35. As Lord Millett observed in Southwark LBC vs Mills [2001] A.C. 1 at page 20 that it is not enough for a landowner to act reasonably in his own interest. He must also be considerate of the interest of his neighbour. Further, that the governing principle is good neighborliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him. 36. In the case of Mwita Merengo vs Joseph Tunei Marwa & 2 Others [2012] KEHC 1705 (KLR), Sitati, J. held that: “ Factors to be considered in determining private nuisance are: a. The nature of locality – nuisance will be judged according to the area in which it occurs. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 11

page 11 of 15

37. b. Duration and frequency – the longer and more frequent the interference, the more likely it will be found to be a nuisance. (In the above scenario the cutting of a tree in the 1st respondent’s land was a onetime event. It was not always happening.) c. Abnormal sensitivity – in that once the tree was cut, it was the appellant’s vegetable garden that was tampered with. Eorts to get the appellant to allow the 1st respondent to see the extent of damage fell on deaf ears. This on its own indicate that the defendant was more than willing to reason with the appellant but the appellant was not ready to reason because it is not out of the ordinary that the tree may have fallen on the 1st respondent’s portion of land.” At Paragraph 19-11 of Clerk & Lindsell refers to the need for there to be "a real interference with the comfort or convenience of living according to the standards of the average man". The text goes on to state that: "… the discomfort must be substantial not merely with reference to the claimant; it must be of such a degree that it would be substantial to any person occupying the claimant's premises, irrespective of his position, in life, age, or state of health; it must be "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people" citing Walter v Selfe (1851) 4 De G & Sm 315 at 322.” 38. In the case of Kay vs Windrush Riverside Properties Ltd [2022] EWHC2210 (TCC), HHJ Russen said: “ The objective elements of the test to determine whether or not what the neighbour considers noisome is in law an actionable nuisance, imported by the concept of a reasonable user having regard to the locality, also mean that the court will approach the question of what the neighbour might reasonably be expected to put up with by applying the standards of the average person. On this aspect, a number of subsequent cases have applied the test formulated by Knight Bruce V.-C. in Walter v Selfe (1851) 4 DE G & Sm 315, at 322, where he put the point as follows: “… ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people’?"” 39. Essentially, the above cited authorities are specic that, in a case of private nuisance, the reasonableness test, turning on the question of what a neighbour might reasonably be expected to put up with, is applicable. 40. From the evidence on record, the toilet complained of was constructed within the Appellant’s property, namely Chalet No. 13 at Karibuni Villas, Mambrui. However, its location was in very close proximity to the Respondent’s adjoining property, Chalet No. 14, and more specically near the Respondent’s dining area. The inspection reports conrmed that there were foul emissions from the toilet that were perceptible within the Respondent’s premises, to the extent that it was classied as a https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 12

page 12 of 15

public health nuisance. The reports further indicated that the situation would worsen with continued usage, and would deny the Respondent the comfort of her home if not remedied. 41. It becomes clear from the evidence that the Appellant’s toilet having been constructed in close proximity, not only to the Respondent’s property but also to her dining area, it would reasonably be expected that the foul emissions would lead to discomfort and interference with her enjoyment of her property. As such, the evidence independently established the ingredients of private nuisance, namely substantial and unreasonable interference with the Respondent’s enjoyment of her property. Ultimately, liability on private nuisance was supported by the evidence and the applicable legal principles, and we are satised that the reasonableness test, in so far as the private nuisance is concerned, was on a balance of probabilities, properly established. We further nd, with respect that, liability in respect of public nuisance having been established, the trial court’s reliance on the strict liability principles as pertains to the doctrine in Rylands vs Fletcher (supra), was unnecessary, considering that the dispute involved foul emissions from a domestic utility. 42. Turning to the question of whether the learned Judge improperly invoked and applied Articles 42 and 70 of the Constitution in the absence of specic pleadings, it was submitted that, by introducing constitutional issues suo motu, the court determined the dispute on a basis not pleaded by the parties, thereby occasioning prejudice to the Appellant. The Respondent in reply submitted that the complaint concerned foul smell emissions, pollution, and denial of enjoyment of property, matters that naturally invoke the right to a clean and healthy environment under Article 42, and that the learned Judge was therefore entitled to rely on those provisions. 43. It is trite law that parties are bound by their pleadings, and a court should conne itself to issues arising from those pleadings. In the case of Independent Electoral and Boundaries Commission & another vs Stephen Mutinda Mule & 3 others [2014] eKLR; Civil Appeal 219 of 2013. This Court held that a court has no jurisdiction to determine matters not pleaded by the parties. Likewise, in Raila Amolo Odinga & another vs Independent Electoral and Boundaries Commission & 2 others [2017] eKLR; Presidential Election Petition 1 of 2017, the Supreme Court rearmed that parties are bound by their pleadings, and that matters not raised in the pleadings ought not to form the basis of determination. 44. Much as the pleadings make no specic plea for an alleged breach of Article 42, or any constitutional petition mounted under Article 70, our view is that the trial court merely appreciated the existence of the provisions of the Constitution as the supreme law, in so far as it guarantees a clean and healthy environment, but stopped short of their application for the purposes of this case. 45. As concerns the issue of whether the order directing relocation of the water closet within 45 days was excessive, disproportionate, or otherwise unjustied in the circumstances, the Appellant contended that the toilet facility was constructed after obtaining approvals from the relevant authorities and at considerable expense, and that the court failed to consider less intrusive alternatives such as odour control measures, structural modication, improved ventilation, or sanitary treatment; and that the relocation order amounted to an unjustied interference with the Appellant’s proprietary rights under Article 40 of the Constitution. 46. The record discloses that the nuisance complained of was continuous. In the case of Jalla vs Shell International Trading and Shipping Co Ltd [2023] UKSC 16: “…a continuing nuisance is one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of aairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land. For a continuing nuisance, the interference may be https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 13

page 13 of 15

similar on each occasion but the important point is that it is continuing day after day or on another regular basis...The cause of action therefore accrues afresh on a continuing basis.…” 47. The remedies available in private nuisance include abatement, damages and injunctions. Where the injury is continuing and cannot adequately be compensated by an award of damages, the court is entitled to grant injunctive relief to bring the nuisance to an end, as stated in the case of Shelfer vs City of London Electrical Lighting Co. [1895]1 Ch 287. 48. The Respondent, in her Amended Plaint sought, inter alia, a declaration that the water closet constituted a nuisance and ought to be relocated. Although the amended plaint did not expressly describe the latter relief as a mandatory injunction, the substance and legal eect of the prayer was precisely that. A prayer requiring a defendant to relocate an oending structure is, in law, a prayer for a mandatory injunction because it compels the performance of a positive act. Having found that the toilet constituted a continuing nuisance, the learned trial Judge properly granted the declaratory relief sought and ordered the Appellant to relocate the toilet within 45 days. Although the order was not expressly labelled a mandatory injunction, it was, in substance and legal eect, a mandatory injunction directed at permanently abating the nuisance. 49. A mandatory injunction is dened in Black's Law Dictionary, 7th Edition, at page 788 as, “An injunction that orders an armative action or mandates a specic course of conduct.” Such relief is consistent with the relief ordered in the case of Orbit Chemicals Industries vs Ndetei [2021] KECA 741 (KLR), where this Court upheld a mandatory injunction requiring the defendant to undertake positive remedial works to eliminate a continuing nuisance. 50. In the present matter, the nuisance arose not merely from usage of a toilet in abstract, but from its location in close proximity to the Respondent’s property and, in particular, the dining area from where it emitted a continuous foul odour that permeated into the Respondent’s property. The public health inspection reports classied the condition as a nuisance and expressly recommended its relocation as the suitable remedial measure. No cogent evidence was tendered by the Appellant to demonstrate that lesser mitigation measures would eectively eliminate the nuisance. In the circumstances, the learned Judge was entitled to conclude that relocation was the eective means of abating the nuisance. Further, the Appellant did not indicate that the period of 45 days for compliance was insucient, and therefore it cannot be said to have been excessive, arbitrary or unreasonable. In our view, this ground of appeal fails. 51. In sum, the appeal is without merit and is accordingly dismissed with costs to the Respondent. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR ................................. JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. ................................. JUDGE OF APPEAL G. W. NGENYE-MACHARIA ................................. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 14

page 14 of 15

JUDGE OF APPEAL I certify that this is the true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1917/eng@2026-09-25 15

page 15 of 15