[2005] KEHC 3209 (KLR)

[2005] KEHC 3209 (KLR)

The court found that the plaintiffs, being a small group of individuals residing in their respective properties adjoining the defendants' plots, are directly affected by the alleged nuisance. The facts pleaded do not amount to a public nuisance, as the harm is not to the public at large but to a specific group. Therefore, section 61 of the Civil Procedure Act, which requires the Attorney General's consent for public nuisance actions, does not apply. The suit concerns private nuisance, and the plaintiffs have locus standi to bring the action in their own right. Order 1 rule 8 is inapplicable as the plaintiffs are not suing as representatives of a larger class. The preliminary objection by...

Citation
[2005] KEHC 3209 (KLR)
Parties
Plaintiff: MR. K. KIMANI; Plaintiff: DR. J.M. CHAMIA; Plaintiff: P. KIBINJA; Plaintiff: J. KAGURU; Plaintiff: A. MARAMI; Plaintiff: N. GOSHIL; Plaintiff: MOSES M. MUKURA; Plaintiff: T.M. LUBUMA; Plaintiff: DR. KAREGA; Plaintiff: DR. E. MAINA; Plaintiff: EVASONS MWAKIO; Plaintiff: Mr. C. KAMANDE; Defendant: NYALI MASJID TRUST (REGISTERED TRUSTEE); Defendant: ABDULHAMED ABDULRAHIM; Defendant: AHMED ALI TAIB; Defendant: YUSUFALI ESMAILJI & HUZEFA YUSUFALI ESMAILJI; Defendant: ABDULKADIR ABDULAHI FARAH; Defendant: JAMA ABDINUR; Defendant: NYALI TRUSTEE (REGISTERED TRUSTEE)
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
2 February 2005
Case Number
Civil Case 178 of 2004
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Legal Topics
Private Nuisance, Locus Standi, Preliminary Objection, Public Nuisance, Civil Procedure
Source Language
English
Tort Law Private Nuisance Locus Standi Preliminary Objection Public Nuisance Civil Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

MR. K. KIMANI

Plaintiff

DR. J.M. CHAMIA

Plaintiff

P. KIBINJA

Plaintiff

J. KAGURU

Plaintiff

A. MARAMI

Plaintiff

N. GOSHIL

Plaintiff

MOSES M. MUKURA

Plaintiff

T.M. LUBUMA

Plaintiff

DR. KAREGA

Plaintiff

DR. E. MAINA

Plaintiff

EVASONS MWAKIO

Plaintiff

Mr. C. KAMANDE

Plaintiff

NYALI MASJID TRUST (REGISTERED TRUSTEE)

Defendant

ABDULHAMED ABDULRAHIM

Defendant

AHMED ALI TAIB

Defendant

YUSUFALI ESMAILJI & HUZEFA YUSUFALI ESMAILJI

Defendant

ABDULKADIR ABDULAHI FARAH

Defendant

JAMA ABDINUR

Defendant

NYALI TRUSTEE (REGISTERED TRUSTEE)

Defendant

Procedural Posture

Civil Case / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the plaintiffs have locus standi to bring the suit without the consent of the Attorney General under section 61 of the Civil Procedure Act.
  2. 2 Whether the facts pleaded amount to a public nuisance or a private nuisance.
  3. 3 Whether Order 1 rule 8 of the Civil Procedure Rules applies to the suit.

Ratio Decidendi

The court found that the plaintiffs, being a small group of individuals residing in their respective properties adjoining the defendants' plots, are directly affected by the alleged nuisance. The facts pleaded do not amount to a public nuisance, as the harm is not to the public at large but to a specific group. Therefore, section 61 of the Civil Procedure Act, which requires the Attorney General's consent for public nuisance actions, does not apply. The suit concerns private nuisance, and the plaintiffs have locus standi to bring the action in their own right. Order 1 rule 8 is inapplicable as the plaintiffs are not suing as representatives of a larger class. The preliminary objection by...

Court Disposition

preliminary objection dismissed

Orders

  • The preliminary objection is rejected.
  • Costs shall go to the plaintiffs.