JOMO KENYATTA UNIVERSITY

OF
AGRICULTURE AND TECHNOLOGY

DEPARTMENT OF MECHATRONIC ENGINEERING

P. O. BOX 62000 - 00200  NAIROBI KENYATEL: 07290440800701883903.

UNIT: LAW FOR ENGINEERS

UNIT CODE: EMT 2517

TITLE: LAB REPORT

GROUP MEMBERS REG No.

1. ERICK MBEKA EN292-2050/2012
2. EMMANUEL WARUTERE EN292-2930/2013
3. EZRA MARASI EN292-2056/2012
4. PETER NGESO EN292-3403/2011
5. NASHON MUTUA EN292-0608/2012
Question

Under the law of nuisance, we have private and public nuisance.

a. Explain the difference.

The term nuisance first emerged in the thirteenth century and referred to an act or omission
materially affecting the comfort and quality of life of a class of the public or an interference for a
substantial period with the use and enjoyment of neighbouring property. A private nuisance effects
one individual’s enjoyment of his land, while a public nuisance effects a larger amount of citizens,
or the public in general.

Public Nuisance
The term public nuisance covers a wide variety of minor crimes that threaten the health, morals,
safety, comfort, convenience, or welfare of a community. Violators may be punished by a criminal
sentence, a fine, or both. A defendant may also be required to remove a nuisance or to pay the
costs of removal. For example, a manufacturer who has polluted a stream might be fined and might
also be ordered to pay the cost of cleanup. Public nuisances may interfere with public health, such
as in the keeping of diseased animals or a malarial pond. In Kenya, mostly public nuisance cases
are related to the Public Health act.

Private Nuisance
A private nuisance is an interference with a person's enjoyment and use of his land. The law
recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired
condition of the property and to reasonable comfort and convenience in its occupation.
Examples of private nuisances abound. Nuisances that interfere with the physical condition of the
land include vibration or blasting that damages a house; destruction of crops; raising of a water
table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances
interfering with the comfort, convenience, or health of an occupant are noxious gases, smoke, dust,
loud noises, excessive light, or high temperatures.
Some nuisances can be both public and private in certain circumstances where the public nuisance
substantially interferes with the use of an individual's adjoining land. For example, Pollution of a
river might constitute both a public and a private nuisance. This is known as a mixed nuisance.
 b. Under public nuisance pick out a relevant industry/factory and assuming that you work
there, try to explain to the residents of that area the procedure of making a public claim
against the factory.

Case issue

Our case is focused on the Kenya leather industry located on the Thika-Garrisa highway where the
leather industry has been polluting the air which affect the surrounding area. The industry’s waste
water treatment plant also emits a foul smell. The area surrounding the industry started developing
due to the availability of affordable lands, apartments and availability of good tarmacked roads.
Pollution by Kenya leather industry.
i. Air pollution from Hydrogen sulphide gas produced in leather soaking lining
treatment tanks.
ii. Water pollution from effluence discharged from the factory especially considering
that the factory is near a community water treatment plant.

The Public Health Act Cap 242.

i. No person shall cause a nuisance or shall suffer to exist on any land or premises owned or
occupied by him or of which he is in charge any nuisance or other condition liable to be
injurious or dangerous to health.
It will be noted that this is a three pronged section:
(a) No none shall cause a nuisance and
(b) No one shall suffer a nuisance to exist and
(c) No one shall suffer any other condition to exist which is liable to be injurious or dangerous to
health.
In the circumstances described, the penal section is:-
Any person who fails to obey an order to comply with the requirements of the medical officer of
health or otherwise to remove the nuisance shall, unless he satisfies the court that he has used all
diligence to carry out such order, be guilty of an offence and liable to a fine not exceeding eighty
shillings for every day during which the default continues; and any person willfully acting in
contravention of a closing order shall be guilty of an offence and liable to a fine not exceeding
eighty shillings for every day during which the contravention continues.
Persons responsible for making a public nuisance claim
i. It is the duty of every local authority to take all lawful, necessary and reasonably practicable
measures for maintaining its district at all times in clean and sanitary condition, and for
preventing the occurrence therein of, or for remedying or causing to be remedied, any
nuisance or condition liable to be injurious or dangerous to health, and to take proceedings
at law against any person causing or responsible for the continuance of any such nuisance
or condition.”
ii. It is the duty of every health authority to take all lawful, necessary and reasonably
practicable measures for preventing or causing to be prevented or remedied all conditions
liable to be injurious or dangerous to health arising from the erection or occupation of
unhealthy dwellings or premises, or the erection of dwellings or premises on unhealthy
sites or on sites of insufficient extent, or from overcrowding, or from the construction,
condition or manner of use of any factory or trade premises, and to take proceedings against
any person causing or responsible for the continuance of any such condition.”

Procedure for the local authority to follow

The medical officer of health, if satisfied of the existence of a nuisance, shall serve a notice. On
the author of the nuisance or, if he cannot be found, On the occupier or owner of the dwelling or
premises on which the nuisance arises or continues, requiring him to remove it within the time
specified in the notice, and to execute such work and do such things as may be necessary for that
purpose, and, if the medical officer of health thinks it desirable (but not otherwise), specifying any
work to be executed to prevent a recurrence of the said nuisance.
Provided that –
i. Where the nuisance arises from any want or defect of a structural character, or where
the dwelling or premises are unoccupied, the notice shall be served on the owner.
ii. Where the author of the nuisance cannot be found and it is clear that the nuisance does
not arise or continue by the act or default or sufferance of the occupier or owner of the
dwelling or premises, the medical officer of health shall remove the same and may do
what is necessary to prevent the recurrence thereof. If the person on whom a notice to
remove a nuisance has been served as aforesaid fails to comply with any of the
requirements thereof within the time specified, the medical officer of health shall cause
 a complaint relating to such nuisance to be made before a magistrate, and such
magistrate shall thereupon issue a summons requiring the person on whom the notice
was served to appear before his court.”
Actions of the court
Once the case is presented before the court, the following steps may be taken;
i. Order compliance
“If the court is satisfied that the alleged nuisance exists, the court shall make an order on the author
thereof, or the occupier or owner of the dwelling or premises, as the case may be, requiring him to
comply with all or any of the requirements of the notice or otherwise to remove the nuisance within
a time specified in the order and to do any works necessary for that purpose.”
There must of course exist a nuisance of the nature described for the Section to apply, since the
proceedings are based upon the notice.
ii. Fine for non-compliance to date or order, and order costs
The court may by such order impose a fine not exceeding two hundred shillings on the person on
whom the order is made, and may also give directions as to the payment of all costs incurred up to
the time of the hearing or making of the order for the removal of the nuisance.
iii. Fine for non-compliance within time set by notice, and order costs
If the court is satisfied that the nuisance, although removed since the service of the notice, was not
removed within the time specified in such notice, the court may impose a fine not exceeding two
hundred shillings on the person on whom such notice was served, and may, in addition to or in
substitution for such fine, order such person to pay all costs incurred up to the time of the hearing
of the case.
iv. Make orders where likelihood of recurrence
If the nuisance, although removed since the service of the notice, in the opinion of the medical
officer of health is likely to recur on the same premises, the medical officer of health shall cause a
complaint relating to such nuisance to be made before a magistrate, and the magistrate shall
thereupon issue a summons requiring the person on whom the notice was served to appear before
him.
If the court is satisfied that the alleged nuisance, although removed, is likely to recur on the same
premises, the court shall make an order on the author thereof or the occupier or owner of the
dwelling or premises, as the case may be, requiring him to do any specified work necessary to
prevent the recurrence of the nuisance and prohibiting its recurrence.
v. Inspect the premises
Before making any order, the court may, if it thinks fit, adjourn the hearing or further hearing of
the summons until an inspection, investigation or analysis in respect of the nuisance alleged has
been made by some competent person.
vi. Make closure order where unfit for human habitation
Where the nuisance proved to exist is such as to render a dwelling unfit, in the judgment of the
court, for human habitation, the court may issue a closing order prohibiting the use thereof as a
dwelling until in its judgment the dwelling is fit for that purpose; and may further order that no
rent shall be due or payable by or on behalf of the occupier of that dwelling in respect of the period
in which the closing order exists; and on the court being satisfied that it has been rendered fit for
use as a dwelling the court may terminate the closing order and by a further order declare the
dwelling habitable, and from the date thereof such dwelling may be let or inhabited.

Reference cases
Njeru, Ibrahim v R Criminal (Revision) Case No 12 of 1979 (MSA)
Doshi & others v R Criminal Cases Nos 17, 20 & 24 of 1987 (MSA)
Republic v Kigera [1988] KLR 819
Great Western Railway Company v Bishop (1872) LR QB 550
Coventry City Council v Cartwright [1975] 2 All ER 99; [1975] 1 WLR 845; 119 SJ 235
Salford City Council v McNally [1975] All ER 860; [1976] AC 379; [1975] 3 WLR 87
National Coal Board v Neath Borough Council [1976] 2 All ER 478
Statutes
Public Health Act (cap 242) sections 115, 116, 117, 118, 119, 120 and 121
Public Health Act 1936 [UK] section 92(1) (a), (c)