An Analysis on Private Nuisance and Interference with Enjoyment of Land in the Kenyan Context

Introduction

This commentary addresses the principle of private nuisance under Kenyan law, particularly in the context of neighbor disputes involving interference with the use and enjoyment of land. It considers both local and persuasive foreign jurisprudence, including the recent UK case of Fearn v Tate Gallery (2023) and the Kenyan case Gitiriku Wainaina v Kenafric (2020), to explore the scope and limits of liability in nuisance claims. The commentary also delves into relevant Kenyan statutes and doctrines to guide similar disputes.

1. Legal Definition of Private Nuisance

Private nuisance is defined as a continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or in connection with it. The tort is concerned not with damage to the property per se, but with infringement of the right to enjoy one’s property peacefully.

Key Elements:

1. Unlawful Interference – the interference must be substantial and unreasonable.
2. Indirect Interference – usually involves noise, smell, smoke, vibration, or even encroaching tree roots or structures.
3. Actual Harm or Loss – the plaintiff must prove that the interference caused actual loss or discomfort.

2. Application in the Kenyan Legal Framework

Under Kenyan law, the tort of private nuisance is well recognised, though not codified. Courts have interpreted and applied the principles through common law and case precedent.

Relevant legal sources include:

• The Constitution of Kenya, 2010, particularly Article 40 (right to property) and Article 42 (right to a clean and healthy environment).
• The Environmental Management and Coordination Act (EMCA), 1999, which supports claims relating to environmental nuisance.
• Common law principles of tort, including English precedents where applicable.

3. Case Law Analysis

A. Kenyan Case Law

i. Gitiriku Wainaina v Kenafric (2020) [eKLR]

• Facts: The plaintiff, a residential property owner, sued a neighboring factory (Kenafric) for causing excessive noise, vibrations, and emissions which interfered with the enjoyment of his property.
• Holding: The court found in favor of the plaintiff, ruling that the factory’s operations constituted private nuisance, as they were substantial, continuous and unreasonable.
• Significance: This case reinforces that even lawful business operations can constitute nuisance when they interfere unreasonably with neighbors’ enjoyment of property.

ii. Gachui v Mothers Holdings Ltd (2013) eKLR

• A similar nuisance case where the court restrained a commercial entity from operating a noisy nightclub next to residential houses.
• Emphasised balancing the rights of both parties: the defendant’s right to carry out business vs. the plaintiff’s right to quiet enjoyment of their property.

B. Foreign (Persuasive) Jurisprudence

Fearn & Others v Board of Trustees of the Tate Gallery [2023] UKSC 4

• Facts: Residents of luxury flats adjacent to the Tate Modern Gallery sued for nuisance, alleging that the gallery’s viewing platform allowed visitors to look directly into their homes, violating their privacy.
• Holding: The UK Supreme Court ruled that this amounted to private nuisance through visual intrusion, marking a departure from the traditional limitation of nuisance to physical or sensory interferences.
• Significance: This case extends the scope of private nuisance to include overlooking, where it causes a substantial invasion of privacy, an important evolution of the tort in urban settings.

Implications for Kenya

While Kenyan courts have not yet adopted Fearn's principles on visual intrusion, it offers persuasive guidance as Kenya's urban areas become more densely populated and high-rise developments more common. The recognition of privacy as a dimension of property enjoyment aligns with Article 31 of the Constitution, which protects the right to privacy.

4. Standards of Reasonableness and Substantiality

The courts consider the following to determine if interference is unreasonable:

• Nature of the locality – residential vs industrial zones
• Time and duration of the interference
• Malice or intent of the defendant
• Sensitivity of the plaintiff – courts apply the “ordinary person” test
• Public interest vs individual rights – balancing test

As held in Gachui v Mothers Holdings Ltd, even a legally operating business must take care not to unreasonably interfere with others’ rights.

5. Remedies Available

Under Kenyan law, claimants in nuisance can pursue:

• Injunctions – to restrain the defendant from continuing the nuisance
• Damages – for loss of use, discomfort, or diminution in property value
• Abatement – self-help remedy (though must be exercised with caution)

In Gitiriku Wainaina, both damages and injunctive relief were granted, demonstrating courts' readiness to enforce rights against environmental and property nuisances.

6. Comparative Outlook and Recommendations

Kenyan courts are increasingly receptive to evolving standards of nuisance, particularly as urban expansion leads to more mixed-use zones. Future claims may involve novel forms of nuisance, such as:

• Light pollution
• Surveillance
• Construction-related nuisances
• Encroachments via drones or smart devices

To that end, courts may draw from Fearn and other foreign precedents to progressively interpret nuisance in line with constitutional values and environmental justice.

Conclusion

Private nuisance remains a viable cause of action in Kenya for property owners whose enjoyment of land is substantially and unreasonably interfered with. The courts balance competing rights and apply a test of reasonableness rooted in the common law and guided by constitutional and statutory principles. While Kenyan jurisprudence has developed a firm foundation for resolving such disputes, there is room for progressive interpretation, especially in light of persuasive decisions such as Fearn v Tate Gallery.

Recommendations

• Property developers, businesses, and urban planners should conduct Environmental and Social Impact Assessments (ESIAs) to preempt nuisance claims.
• Residents facing interference should document evidence (noise measurements, expert reports) to support claims of substantial nuisance.
• Legal practitioners should monitor comparative jurisprudence for evolving definitions of nuisance in line with constitutional rights.

 Key Authorities Cited

1. Gitiriku Wainaina v Kenafric Industries Ltd (2020) eKLR
2. Gachui v Mothers Holdings Ltd (2013) eKLR
3. Fearn & Others v Board of Trustees of the Tate Gallery [2023] UKSC 4
4. The Constitution of Kenya, 2010 – Articles 40, 42, 31
5. EMCA, 1999 

  

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

LIMITED APPELLATE AVENUES UNDER SECTION 35 OF THE ARBITRATION ACT – SUPREME COURT REAFFIRMS JURISDICTIONAL THRESHOLDS

Introduction

In its decision delivered on 12th April 2024 in Kampala International University v. Housing Finance Company Limited, the Supreme Court of Kenya reaffirmed the principle that the right of appeal under Section 35 of the Arbitration Act (No. 4 of 1995) is tightly circumscribed. The decision reinforces the doctrine of finality in arbitration and reasserts the jurisdictional limits of appellate courts in matters arising from arbitral awards. This brief examines the legal background, factual matrix, procedural history, issues considered, and jurisprudential significance of the ruling within the context of Kenya’s arbitration framework.

Factual Background

The Appellant, Kampala International University (KIU), an educational institution headquartered in Uganda, undertook an expansion project in Kenya, intending to construct a campus in Kitengela. To facilitate the project, the Appellant sought and secured a loan facility of USD 15 million from the Respondent, Housing Finance Company Limited (HFCL).

While an initial tranche of USD 10 million was disbursed in January 2014, the Appellant contended that the remaining USD 5 million was not fully released, with only USD 1.3 million being disbursed, and the balance of USD 3.7 million being withheld without sufficient justification. Disputes also arose concerning alleged breach of contract and overcharging of interest.

By mutual agreement, the dispute was referred to arbitration, and Mr. Collins Namachanja was appointed as sole arbitrator. On 17th September 2019, the arbitrator issued a final award:

• The Appellant’s claims were largely dismissed, with nominal damages of USD 500,000 awarded.
• The Appellant succeeded in its claim for USD 549,762.54 for overcharged interest.
• The Respondent’s counterclaim succeeded in full, with KIU ordered to pay USD 12,767,508.33, plus compound interest at 9.5% p.a. from 16th January 2018.

Procedural History

Aggrieved by the arbitral outcome, the Appellant filed an application before the High Court seeking to set aside the award under Section 35 of the Arbitration Act, asserting, inter alia, that the award was illegal and void ab initio. The High Court dismissed the application and adopted the arbitral award as a judgment of the court.

Subsequently, the Appellant sought leave to appeal from the Court of Appeal, alongside a stay of execution and conservatory orders. The Court of Appeal declined to grant leave, holding that the Appellant had not met the threshold under Sections 35(2)(a) and 39 of the Arbitration Act, nor had it demonstrated any issue of public importance.

The Appellant then escalated the matter to the Supreme Court, challenging the jurisdiction of the lower courts and seeking to set aside the Court of Appeal’s refusal to grant leave.

Issues for Determination

The Supreme Court distilled the dispute into two primary issues:

1.        Whether the Supreme Court had jurisdiction to entertain the appeal.

2.        Whether the Appellant had met the threshold for grant of leave to appeal to the Court of Appeal.

Analysis and Determination

1. Jurisdiction of the Supreme Court

The Court reaffirmed that under Article 163(4) of the Constitution, its appellate jurisdiction is limited to matters involving constitutional interpretation or application, or where leave has been granted on the basis of matters of general public importance. It cited precedents including:

• Teachers Service Commission v. Kenya National Union of Teachers & 3 Others,
• Basil Criticos v. IEBC & 2 Others,
• Hassan Ali Joho v. Suleiman Said Shahbal,
• Deynes Muriithi & 32 Others v. LSK & Another.

The Court observed that where no constitutional issue has been raised or determined by the superior courts below, it has no jurisdiction to assume appellate authority. Mere dissatisfaction with outcomes or claims of injustice are insufficient to invoke its jurisdiction.

2. Threshold for Leave under Section 35

The Court reiterated its landmark decision in Nyutu Agrovet Ltd v. Airtel Networks Ltd & Another [2019] eKLR, which held that appeals from decisions under Section 35 of the Arbitration Act are not automatic. Such appeals lie only where the High Court, in setting aside or refusing to set aside an arbitral award, acts beyond the statutory grounds provided, resulting in a decision that is:

• manifestly erroneous,
• closes the door to justice, or
• contravenes public policy.

This position was upheld in the Synergy Industrial Credit Ltd v. Cape Holdings Ltd [2019] eKLR decision. The Court emphasized that leave must be sought and granted before an appeal can proceed from the High Court to the Court of Appeal under Section 35.

In the present case, the Appellant failed to demonstrate that the High Court had acted outside the statutory limits, nor did it establish that any constitutional or public interest issue was at stake. Consequently, the Court found that no appeal lay as of right, and it could not assume jurisdiction to challenge the denial of leave by the Court of Appeal.

Conclusion and Legal Implications

The Supreme Court dismissed the appeal, holding that there was no constitutional question or exceptional circumstance warranting its intervention. The Court reaffirmed the finality of arbitral awards, and the limited scope for appellate recourse under Kenya’s arbitration regime.

This decision is a critical reinforcement of:

• The doctrine of party autonomy in arbitration,
• The limited supervisory role of courts in arbitral proceedings, and
• The principle that judicial interference is only permissible in exceptional cases strictly defined by statute and precedent.

In effect, the ruling serves as a guiding precedent for lower courts and litigants alike, confirming that:

"Not every error of law or fact arising from arbitral proceedings gives rise to an appealable issue; rather, it is only where justice has been fundamentally denied that appellate intervention may be considered."

Key Authorities Cited

• Nyutu Agrovet Ltd v. Airtel Networks Kenya Ltd & Another [2019] eKLR
• Synergy Industrial Credit Ltd v. Cape Holdings Ltd [2019] eKLR
• Teachers Service Commission v. Kenya National Union of Teachers & 3 Others
• Deynes Muriithi & 32 Others v. Law Society of Kenya & Another
• Hassan Ali Joho v. Suleiman Said Shahbal

 Disclaimer: This article is for informational purposes only and does not constitute legal advice.

Desertion and Repudiation in Employment Law: An Analysis of Mumali v Blink Studio Ltd [2025] KEELRC 2112 (KLR)

1. Introduction

The Kenyan legal framework governing employment relationships is premised on principles of fairness, accountability, and mutual obligations. While the Employment Act, 2007 extensively protects employees from arbitrary termination, it equally obligates employees to uphold their duties, including attending work and communicating absences. The decision in Mumali v Blink Studio Limited offers a salient judicial interpretation of employee desertion, repudiation of contract, and the boundaries of procedural fairness under the Act.

 The detailed Case summary is available here 

2. Factual Background and Judicial Findings

In Mumali, the Claimant instituted legal proceedings for unfair termination, asserting that the employer had not followed procedural safeguards as mandated by Section 41 of the Employment Act, 2007. The Respondent contended that the Claimant had absconded duty without justification or communication, and that the issuance of a one-month termination notice was an administrative necessity rather than a punitive measure.

The court ultimately sided with the Respondent, holding that the Claimant’s prolonged, unexplained absence without the intention to resume work amounted to desertion, a form of repudiation of the employment contract. The employer’s issuance of a termination notice was viewed as a lawful acceptance of that repudiation, and the termination process was deemed procedurally fair in the circumstances.

Key Facts:

• The Claimant filed a claim for unfair termination.
• The Respondent argued the Claimant had absconded duty without explanation or indication of return.
• After a period of unexplained absence, the Respondent issued a one-month notice of termination.
• The Respondent asserted that the Claimant’s conduct amounted to a repudiation of the employment contract 

Court's Holding:

• The Claimant’s conduct constituted desertion, not mere absenteeism.
• Desertion amounts to repudiation of the employment contract.
• The Respondent’s issuance of a notice of termination was a lawful acceptance of that repudiation.
• Procedural fairness under Section 41 was not strictly required because the employee was unavailable and had abandoned the relationship.
• The termination was fair and lawful. 

3. Legal Issues and Doctrinal Analysis

3.1 Desertion as Just Cause for Termination

Desertion is recognized under Section 44(4)(a) of the Employment Act, which permits summary dismissal if an employee “without leave or other lawful cause, absents himself from the place appointed for the performance of his work.” This provision captures both unauthorized absenteeism and prolonged absences that indicate abandonment of employment duties.

In Mumali, the court applied this statutory standard, finding that the Claimant’s conduct transcended mere absenteeism and qualified as intentional desertion. Courts have historically required that desertion be voluntary, without cause, and accompanied by an intent not to return to work—criteria that were satisfied in this instance.

3.2 Repudiation and Contractual Frameworks

The employment relationship in Kenya is grounded in contractual obligations, and the doctrine of repudiation—borrowed from general contract law—applies. Repudiation occurs where one party, by words or conduct, demonstrates an intention not to be bound by the contract.

In Mumali, the employee’s conduct amounted to such a repudiation. The employer’s subsequent action in issuing a termination notice was viewed as a legal acceptance of that repudiation, thus bringing the contract to an end. This approach aligns with common law principles recognised in earlier Kenyan decisions such as Catherine Wanjiru Gachigi v Airtel Networks Kenya Limited [2013] eKLR, where employee conduct was interpreted as implied termination through breach.

3.3 Procedural Fairness under Section 41 of the Employment Act

A key point of contention was whether the employer complied with Section 41, which outlines procedural safeguards prior to termination:

• Notification of grounds for dismissal.
• Opportunity for the employee to respond in the presence of a colleague or union representative.

While this provision is mandatory in most dismissal cases, Kenyan courts have acknowledged exceptions in cases of employee desertion. In Mumali, the court held that where the employee has made themselves unavailable, it is impractical to adhere strictly to procedural steps. This is consistent with the reasoning in Ayub Kombe Gwali v Kenya Ports Authority [2016] eKLR, where the court observed that procedural fairness cannot be enforced where the employee’s own conduct renders it impossible.

4. Broader Implications for Kenyan Labour Law

The ruling in Mumali provides a pragmatic balance between employee rights and employer duties:

• It confirms that desertion, when proved, constitutes a lawful ground for termination.
• It demonstrates judicial recognition of contextual fairness, especially when employee conduct precludes adherence to strict procedural norms.
• The case reinforces the principle that employment contracts are reciprocal: just as employers must act fairly, employees must fulfil their duties, including attendance and communication.

Additionally, this case may serve to guide HR policies and internal disciplinary mechanisms, particularly in sectors prone to high turnover or absenteeism. Employers are advised to keep detailed records of absences, attempts at communication, and notice issuance, to withstand legal scrutiny.

5. Conclusion

The court's decision in Mumali v Blink Studio Ltd underscores a key principle in Kenyan employment jurisprudence: that procedural fairness must be interpreted contextually, and that employee conduct—especially where it signals abandonment—can relieve an employer from full procedural compliance. This reinforces a contractual understanding of the employment relationship, where both parties are bound by duties of good faith, communication, and performance.

As Kenyan employment law continues to develop, this case illustrates how courts may increasingly rely on practical realities and contractual doctrines to resolve employment disputes in a fair and balanced manner.

 

 Disclaimer: This article is for informational purposes only and does not constitute legal advice.