The Kenyan Judges and Magistrates Vetting Board: Justice Gacheche unfit to serve

The Judges and Magistrates Vetting Board has found a High Court judge unfit to serve in the Judiciary. Justice Jeanne Gacheche was declared unfit to continue holding the position of High Court judge Friday. The Board said Justice Gacheche used "her judicial power inappropriately".

However, three other judges were cleared. Justices Wanjiru Karanja, Jessie Lesiit and Mbogholi Msagha were found fit to continue serving in the Judiciary.

The announcement was made in the absence of Chairman Sharad Rao, who is out of the country. Mr Rao's deputy Roselyn Odede took charge.

The last time the Board made its findings public was on July 20 when it sent home two judges, Roselyn Nambuye and Mohammed Ibrahim home and cleared three other judges to continue working in the Judiciary.

The Board declared Supreme Court Judge Mohammed Ibrahim and Court of Appeal Judge Roselyn Nambuye unfit to continue serving in the Judiciary because of delaying judgments and rulings.

Supreme Court Judge Jackton Ojwang and Court of Appeal Judges Hannah Okwengu and Kariuki Kihara were found suitable to continue serving.

Source: DailyNation (03/08/2012):
http://www.nation.co.ke/News/Board+says+Justice+Gacheche+unfit+to+serve+/-/1056/1470028/-/8tucmk/-/index.html

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Justice Twisted? High Court’s Labour Division halts teachers` strike

Waryoba Yankami

**Says action is illegal, orders parties back to negotiations.

The High Court's Labour Division has ordered striking teachers to go back to work immediately, saying their action was illegal because it gave no room for the employer to respond to their claims.

Reading the ruling yesterday in Dar es Salaam, High Court Judge Sophia Wambura said the teachers' strike was unlawful because the notice was sent to the Chief Secretary on Friday last week at 3.00 pm whereby working hours were almost over.

The judge also said that teachers were the ones who refused to continue with negotiations.

She said for a strike to be lawful the parties were supposed to come together and agree on the modalities' of the ballot and the strike itself.

She however noted that it is clear the teachers were not fully informed of the consequences of a lawful and unlawful strike.

She also informed the teachers that participating in an unlawful strike for an indefinite period essentially means one has retired from employment or the employer can terminate the services to them.

Wambura said there was no doubt the strike has inconvenienced the students' curricula and has caused irreversible loss which is one of the good grounds for granting an injunction.

The judge ruled also that the procedures followed were conducted in bad faith and that the ballot as well as the notice was invalid.

"Under the provision of section 84 (1) and (2) of the ELRA, I hold that the strike which has been going on for three days now is unlawful. I order that it be terminated immediately and all teachers who are on strike should resume their duties forthwith," ruled the judge.

Judge Wambura ordered that since the strike was allegedly called through a press release then the leader who issued and signed the release stating that teachers should not go to work until he tells them to, should accordingly prepare a press release calling for an end of the strike immediately.

The judge also directed the Union to pay damages monetary or by compensating the students the classes missed during the unlawful strike which should be explained in the press release, adding: "More so for pupils who are expected to have national examinations later this year."

Judge Wambura reminded the two parties that no one is allowed to decide whether or not a strike is lawful except the court.

She also told the two parties to return to negotiations and make deliberate efforts to reach an amicable settlement by even inviting persons who are good in labour laws and relations to assist them.

When approached for comment, the TTU president Gratian Mukoba said they will hold a press briefing today (Friday) at their office.

As the court rules against TTU, the Survey done by this paper in Dar es Salaam established that teachers were still on strike. In some areas The Guardian team witnessed some students teaching others.

SOURCE: THE GUARDIAN (03/08/2012):
http://www.ippmedia.com/frontend/index.php?l=44361

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The Doctrine of Vicarious Liability in Tanzania: Can an Employer be held Liable for a Tortious act of his Employee?

Jaba Shadrack, UDSM – School of Law, jaba@udsm.ac.tz

Meaning of the doctrine of vicarious liability

Vicarious liability refers legal responsibility that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. Vicarious liability presupposes a state whereby one person is liable for a tort committed by another person. It is a form of strict, secondary liability that arises under the common law maxim of 'respondeat superior' i.e. responsibility of the superior for the acts of their subordinates. 

Friedmann on Torts has stated the doctrine of vicarious liability in simple terms as follows:

In some instances one person may be held liable for the wrongful act or omission of another even if the specific act or omission was unknown to him at the time it occurred. Vicarious liability is guided by a Latin maxim, qui facit per alium facit perse i.e. he who does something through another is deemed to have done it himself. The maxim establishes a principle that resembles the law of agency or the principle of undisclosed principal. However, the two doctrines of vicarious liability and the law of agency differ on the aspect of authority. Whereas, in agency, the principal is liable for acts which he specifically authorise, under vicarious liability the master is liable for the wrongful acts of his servant committed during the course of employment. Example, this notion was affirmed in the case of MAYANJA v. HOIMA COTTON COMPANY LTD. 

Origin and Rationale of the doctrine of vicarious liability

The principle of vicarious liability is deep-rooted in common law. Its origin may be found in early medieval law, although it began to assume a crucial role in the post-medieval period particularly, as commerce grew.

Though the doctrine has its roots in the earliest years of the common law, it was Sir John Holt, C.J (1642-1710) who began the task of adapting medieval rules to the needs of modern society, and his work was continued by the great Victorian Judges. By the beginning of the 20th Century, it was steadily established that, the master's liability was based not on the fiction that he had impliedly command his servant to do what he did, but on the safer and simpler ground that it was done in scope or course of his employment.

In Tanzania, the doctrine of vicarious liability is recognized even under customary law. This position is to be found in the decision of East African Court of Appeal, in the case of KIBAKA v. KITONTO, that decision was adopted by the late Maganga J. (as he then was) in the case of MARIBA WANYANGI v. ROMARE, Mwalusanya J. In the case of SALIM RAMADHANI v. IDDI BAKARI BUSA, quoted the two cases with approval holding many of our tribes including warangi tribe recognize the doctrine of vicarious liability. 

Rationale of the Rule

The advocators of the doctrine of vicarious liability normally justify it by stipulating the following reasons;

First, the employer is in a better position to absorb the legal costs either by purchasing insurance or by increasing his prices. This is evident in Tanzania under the Workers' Compensation Act, whereas every employer is required to take an insurance cover to keep himself insured and maintain an insurance certificate throughout his operation. It has been argued that, vicarious liability is a common sense rule, for employees are usually people of meagre means, thus it is only fair for an injured party to seek compensation from those who control and profit by the organisation in which he is employed. That justification is what constituted the idea of "deep pockets", this proposition is found in the words of Lord Wilberforce in KOORAGANG LTD v. RICHARDSON & WRETCH LTD.

Secondly, the burden of such liability on the employer encourages him to ensure the highest possible safety standards in managing his business. Thirdly, the employer commands or exercise control over his employees therefore, he is responsible for the acts of the latter. Thus, however, this is a demonstrable fallacy because in many cases the employee is more skilled than employer (example; doctors, pilots, lecturer) and so cannot be said in any meaningful senses that employer has control. Fourthly, when the employer is careless in selecting an employee who discharges his duties negligently thus, the employer must accept the responsibility because, by selecting negligent employee, he set in motion the trend of events. Fifthly, the employer derives benefit from the service of his employee, so it is only right that he takes the burdens as well. Finally, by imposing liability on the employer, the employer is thereby given an incentive to ensure that the event does not occur again and that none of his other employees do the same thing.

Relationships under the Doctrine of Vicarious liability:

The relationship basically is that of employer/employee (master/servant) or employer/independent contractor. It should be noted that once it is established that an employer is liable for the torts of an employee it becomes necessary to determine who is and who is not an employee.

Employer/employee (master/servant) Relationship

An employer's vicarious liability for the torts of his employee

The rule is that a master is vicariously liable for the torts of his servant committed in the course of his employment. In LIMPUS v. LONDON GENERAL OMNIBUS CO, a bus driver while racing a bus caused an accident. His employers were held liable because he was doing what he was employed to do i.e. driving a bus, though in an improper way. Likewise, in BARTONSHILL COAL CO. v. McGUIRE , Lord Chelmsford LC observed that, 'every act which is done by a servant in the course of his duty is regarded as done under his master's orders and consequently is the same as if it were his master's own act. Indeed; there was a theory that the employer was vicariously liable for any act committed by the employee in the course of employment. The modern view however is that, such an "act" must be a tort.

Salmond and Heuston on the Law of Torts (19th Ed) pp.521-522, contended that; a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be done so if it is either; one, a wrongful act authorised by his master or, two a wrongful and unauthorised mode of doing some act authorised by the master.

In contrast, the case of BEARD v. LONDON, a bus conductor attempted to turn a bus around at the end of its route and in doing so he caused an accident. His employers were not liable since he was employed only to collect fares and not to drive buses.

To sum up the above position, in order for an employer, therefore to be held liable for the torts of his employee, the following three conditions must be met.

(a) The plaintiff must establish that a relationship that exists between the parties is that of an "employer" and "employee" (master/servant).

(b) Employee must have committed a tort (for which he is always personally liable)

(c) That tort must have been committed in the course of employment of the employee.

Circumstances which an Employer may be liable for acts done by his Employees

In law of tort generally, liability is of a primary nature i.e. tortfeasors are responsible only for damage caused by their own tortious behaviour. However, where there is a legal relationship between persons and a tort is committed by one party to the relationship, and that act is specifically referable to the relationship, it is possible that the law of tort will impose vicarious liability on another party to the relationship.

An employee may be within the course of his employment even though he had acted fraudulently

In LLOYD v. GRACE SMITH, the defendants were solicitors who employed a managing clerk to do conveyancing. The managing clerk fraudulently induced the plaintiff to convey two cottages to him by representing that this was necessary in order to sell the cottages. The clerk then resold the cottages and absconded with the sale proceeds. The solicitors were held liable on the ground that by allowing him to perform conveyancing transaction they had given him apparent authority to act as he did. He was acting within the scope of his employment even though he acted fraudulently. Case law developed by Courts in Tanzania illustrates clearly this situation too. In THE MANAGER IMARA GUEST HOUSE v. EGNAS KAGANDA, the respondent while lodging in the appellant's house, had his radio cassette stolen. It was proved that the radio cassette was stolen while the respondent was not around having locked his door. Both the trial Magistrate and the High Court Judge found the branch manager liable for the loss due to the fact that the keeper (appellants employee) was under an implied contract to take care for the safety of property brought in the house by a guest and further that the employer was vicariously liable for the acts done by his employee in course of employment. Similarly, in NBC v. GRACE SENGELA, the appellant through the vicarious liability principle, paid Tsh. 15.000/= to the respondent for the reason that their employee (a bank attendant) committed a slander by wrongly closing the account of the respondent.

The employer may be liable even if employee acts contrary to his clear instructions

In ROSE v. PLENTY, defendant was a milkman. His employer did everything possible to stop the common practice of taking young children on the van and paying them to help deliver the milk. A notice at the depot said, children must not in any circumstances be employed by you in the performance of your duties. Contrary to this instruction, the defendant employed the plaintiff. While moving from one delivery point to another the boy had one leg dangling from the van so that he could jump off quickly. Defendant drove negligently and plaintiff's foot was crushed between the van and the kerb. It was held that defendant's employer was liable because the defendant had been acting in the scope of his employment i.e. delivering milk and collecting empty bottles, although in an improper way.

Moreover, if an employer provides a vehicle for the employee's use, the employee may be regarded as the employer's agent if he gives another employee a lift, even though it is not within the scope of his employment to do that. This is exemplified by the case of VANDYKE v. FENDER , an employee who was provided with a company car, gave other employees a lift to work. There was an accident and one of the employees was injured. He was successful in his claim for damages against the company since Mr. Fender, although not a paid driver was driving the car as the company's agent and they were therefore liable for his negligence. In the same vein, ANGLINA v. NSUBUGA AND ANOTHER, the court held that, the master is liable where the servants make a small deviation in a journey originally started on his masters business.

Intentional or Criminal Acts, Facilitated by the Employment; It is possible for an employer to be liable for the employee's criminal conduct. In LLOYD v. GRACE SMITH & CO, a solicitor's clerk was found to have acted within the scope of his employment when he fraudulently induced a client to convey properties to him. The employer was vicariously liable though the crime was committed for the employee's benefit.

An employee who wrongfully uses his own property to carry on his job may still be within the course of his employment. For instance, in McKEAN v. RAYNOR BROTHERS, an employee was told to deliver a message using the firm's lorry. Although he took his own car he was still held to be in the course of his employment.

Situations which an employer may not be liable for acts of his employees

An act of violence will usually take the employee outside the scope of employment and the employer will not be liable. In WARREN v. HENLYS , a petrol pump attendant assaulted a customer during an argument over payment for petrol. It was held that, the employer was not liable. Likewise, if an employer allows an employee to use the employer's vehicles for the employee's own use, the employer will not be liable for any accident that may occur.

Frolic: The court will not hold the master liable if it is shown that the servant committed tort while on the frolic of his own: that is, he did the wrong when doing his own business. This position is well illustrated by the case of MACHEME KASKAZINI CORPORATION LTD. (LAMBO ESTATE) v. AIKAELI MBOWE. In this case, the respondent sued the appellant and his employer jointly and severally, in negligence for damaging his house and goods. The appellant's employee, after working hours, used the car of his boss to visit his relative. On his way back crashed into the house of the respondent. The Court of Appeal observed that Simon was not engaged in his employer's business at the material time; and that, the visit to his relative had absolutely no connection with his employment. His driving the vehicle was unauthorised act outside the scope of his employment. One has to take a note that, unauthorised and improper methods of performing a central task do not take an employee outside his course of employment (The case of CENTURY INSURANCE v. NORTHERN IRELAND TRANSPORT BOARD).

Detour: In this, the master is not liable for the wrongs committed by his servant when it is established that, the servant was in detour: that is, he did not follow the exact route instructed by the master. In SSEMBATI v. UGANDA ENTERPRISE CO LTD & ANOTHER, the defendant was a driver driving transit goods from Uganda to Kenya, employed by Uganda Enterprises Co Ltd. He was once given copper from Kilembe mine to Nairobi-Kenya. On arriving in Kenya, the defendant hired maize to be taken to one Kugis residing at Bukoba. This was contrary to instruction given by his employer and he was prohibited from hiring any goods not owned by his employer. On the way to Bukoba, after arriving at Mutukura, he caused injuries to the child of the appellant who was playing along the road. The Court of Appeal of Eastern Africa found out that the driver deviated at the high degree on driving to Tanzania and since the driver was an abled person was to pay the damages on his own and not via employer. However, the courts have reluctantly observed the above rule. For example, in the case of KARISA AND ANOTHER v. SOLANKI AND ANOTHER, the court held that, although the driver did not follow the exact instructions the employer was still liable because the evidence showed when the driver committed the tort it was for the joint benefit of the owner and himself.

Prohibition; sometimes a prohibition imposed by an employer on an employee will limit the scope of employment. Thus, in TWINE v. BEAN'S EXPRESS , a prohibition against drivers giving lifts to hitchhikers was held to limit the scope of employment. However, this was not considered relevant to ROSE v. PLENTY , since Rose was not a mere passenger being given a lift, but he was the method by which plenty did his job. In the case of RANDY v. CRAIG it was held that, to exonerate themselves from liability, masters have to show that the conduct of servants in particular instance was distinctively remote and disconnected from his employment so as to put (servants) virtually strange. This has always been difficult for employers to prove.

Employer/independent contractor relationship:

The common law distinguishes between classes of persons described respectively as employees and independent contractors. This distinction is required to be made for a variety of purposes including the applicability of the doctrine of vicarious liability, where in exclusive circumstances; the employer is made liable for the torts of independent contractors as well.

Conclusion:

Although the doctrine of vicarious liability is accepted in English law there is no clear and convincing rationale for its imposition. A number of theories have been put forward to explain the deviation from the prevalent fault-based theory of liability. It has been suggested that the employer is in control of the behaviour of his employee. This is no longer convincing as many employees perform skilled tasks which the employer is incapable of understanding. To say that, a health authority chief-executive controls the work of the consultant is stretching the meaning of the word. Alternative suggestion has included the fact that the employer may have been careless in selecting the employee. However, liability is not based on this premise, since in some instances; a perfectly competent employee is capable of behaving negligently at some stage in his employment.

NB: This Document is also available in Pdf & iPaper (with footnotes) at:

www.scribd.com/jabashadrack

REFERENCES:

BOOKS:

Abbott, K, (2002) Business Law 7th Ed, Continuum publishers, London

Binamungu, C.S (2002), Law of Torts in Tanzania, Research and Publication Department, Mzumbe University.

Bryan A. Garner, (2004), Black's Law Dictionary, 8th Ed, Thomson West

Cooke John, (1999), Law of Tort 4th Ed, Financial Times Pitman Publishing

Juma. I.H (2007) Learning materials: Law of Tort, DUP

Lewthwaite, J (2004), Tort Law, Oxford University Press, New York

Salmond & Huston, Law of Tort 20th Ed, Sweet & Maxwell, Universal Law Publishing Co. Pvt. Ltd, London.

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Emerging Democracy: Somalia's Constituent Assembly endorses “Draft Constitution” after failed suicide attack

Somalia's constituent assembly has adopted a draft constitution paving the way for the formation of a new government. The vote came shortly after two suicide bombers blew themselves up outside the meeting site.

Somali leaders overwhelmingly endorsed the draft constitution on Wednesday by a landslide 96 percent. Some 625 members approved the document, 13 were against it and there were 11 abstentions.

The special assembly took eight days to debate the document, which was some eight years in the making.

"We are very happy today that you... responsibly completed the procedure by voting for the constitution," Prime Minister Abdiweli Mohamed Ali told the 825-strong assembly. "I announce that Somalia has from today left the transitional period."

A political milestone

The vote paves the way for a new more representative government in Somalia after some eight years under a transitional regime. The Transitional Federal Government's UN-backed mandate is due to expire on August 20. Somalia has been without a stable central government for nearly twenty years since former president Siad Barre was killed in 1991.

Just two hours ahead of the vote, two suicide bombers blew themselves up outside the gates of the Mogadishu meeting. Security forces reportedly shot the bombers as they attempted to detonate their explosives. The two bombers were killed and one Somali soldier was injured.

"Security forces stopped their ambitions of attacking...they were shot and then they detonated their vests," Interior Minister Abisamad Moalim told reporters.

No group has yet claimed responsibility for the attack. It is the latest in a string of explosions, including roadside bombs and grenades, which have hit the Somali capital. However, the al Qaeda linked group al-Shabaab has vowed to topple government, and has claimed responsibility for previous similar such attacks.

Source: DW (02/08/2012) http://www.dw.de/dw/article/0,,16135848,00.html

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Kisutu Resident Magistrates’ Court: Prosecutor says Liyumba used mobile phone to contact PCCB

The prosecution on Thursday told the Kisutu Resident Magistrates' Court that Amatus Liyumba had told Ukonga prison officer in-charge that he refused to hand in his mobile phone to prison authorities because he had issues he needed to clear with the Prevention and Combating of Corruption Bureau (PCCB).

In the case, Liyumba who has just finished serving three-year jail sentence for abuse of office is charged with being found in possession of an illegal item while in prison. State prosecutor Humphrey Malika alleged that on July 27, 2011 Liyumba who was serving a three year sentence in Ukonga Prison as prisoner number 303/2010 was found with unauthorized item (Nokia mobile phone).

Mr Malika told the court that on that day when Liyumba was in his private cell, a prisoner number MF 891/1999 named Hamidu Henji who was supervising the cells, saw him holding a spectacles casing that had a phone inside and when he was spotted he threw it down but while still talking on the cell phone.

He alleged when Henji saw what Liyumba was doing, he reported the matter to the prison guards on duty with registration number B4948WBR Patrick and B4885 WBR Imani Kyejo who subsequently searched Liyumba."When the prison guards reached his cell they found Liyumba still using his phone and when he realized that he had been caught red-handed, he asked the guards to give him his medication for his high blood pressure," alleged Malika.

Malika continued to testify that after the guards had given him the medication they immediately reported the matter to their superior (prison's officer in- charge)."While in the officer in-charge's office, Liyumba failed to explain why he was in possession of the phone orally but asked to be permitted to explain in writing.

"Liyumba wrote that he had refused to hand in his cell phone because he had some issues to clear with PCCB," explained Malika. In the trial that is to resume on April 13, the prosecution is to bring 10 exhibits and 10 witnesses. At the same time defence Counsel Majura Magafu asked the court for a copy of the prosecution's preliminary hearing and the magistrate agreed.

Fred Mpendazoe v. Milton Mahanga election case

Meanwhile, a journalist with Mwananchi newspaper on Thursday testified in Fred Mpendazoe v. Milton Mahanga election case. Aziza Masoud told the High Court that Dr Mahanga, who is Deputy Minister for Labour and Employment, was found with ballot boxes before the announcement of election results. In the case Fred Mpendazoe (Chadema) is challenging the victory of Mahanga.

Source: Tanzania News Link (02/08/2012)
http://www.tanzanianewslink.com/home/79-home-page-articles/6256-prosecutor-says-liyumba-used-mobile-phone-to-contact-pccb

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Why not in Tanzania? Fiji ex-PM convicted of Corruption

The High Court of Fiji on Tuesday found Laisenia Qarase, the country's last democratically-elected prime minister, guilty of nine counts of corruption under the Fiji Penal Code. Suva Court Justice Priyantha Fernando's ruling upholds the findings of a panel of assessors, convicting Qarase of six counts of abuse of office and three counts of discharge of duty related to his service as a company director during the 1990s. The ex-prime minister's crimes were committed prior to serving as Fiji's highest executive, and each charge carries a maximum penalty of three years in prison. Though out on bail, Qarase's sentencing date is scheduled to be set on Wednesday.

Qarase was found guilty by three assessors in the Suva High Court on July 30. His personal and political courtroom battles span several years, and his last case was in April 2009 when the Court of Appeal ruled that Fiji's appointment of a military government following a 2006 coup was unconstitutional and had to be replaced by an interim prime minister until democratic elections could be held. There, the ousted Prime Minister Qarase brought the suit after a High Court found in November 2009 that then-president Ratu Josefa Iloilio had constitutional authority to appoint new leaders following the coup. In October 2008, the former Fijian

figurehead challenged the legality of his ouster by suing Commodore Frank Bainimarama and others who participated in the December 2006 military coup.

Source: JURIST (Brandon Gatto, 01/08/2012): http://jurist.org/paperchase/2012/08/fiji-ex-pm-convicted-of-corruption.php

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Gaddafi son says he will not receive fair Trial in Libya

Rebecca DiLeonardo

Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi has said that he believes he should be tried by the International Criminal Court (ICC), according to a court document filed Tuesday. Saif al-Islam has said that while he would prefer to be tried in Libya, he does not believe the current government can provide a fair trial, saying he believes the government would attempt to intimidate witnesses. Earlier this month, an ICC staff member expressed concern about Libya's ability to hold a fair trial for Saif al-Islam. The issue of which court is going to try Saif al-Islam has been in dispute since he was captured by Libyan rebel forces in November. Libya expressly denied an ICC request to turn over Saif al-Islam, saying that he will face trial within the country. A judge for the ICC postponed a court order to transfer custody after Libya formally challenged the international court's jurisdiction over Saif al-Islam.

The dispute over who will try Saif al-Islam has soured relations between Libya and the ICC. Last month, four ICC staff members who travelled to Libya to speak with Saif al-Islam were detained by Libyan security forces. They were in custody for nearly four weeks. Upon her release, ICC lawyer Melinda Taylor said she did not believe Saif al-Islam would receive a fair trial in the country. Three officials from the ICC and the Australian ambassador to Libya were able to visit and assess the condition of the four detained ICC staff members after their detention. A judicial source in Libya told reporters shortly after their detention that the four could remain in "preventative" detention for 45 days while an investigation is conducted. The four staff members were detained after Taylor was accused of attempting to give documents to Saif al-Islam that were from his former aid, Mohammed Ismail, who has been in hiding since the Libyan conflict began.

Source: JURIST (01/08/2012)
http://jurist.org/paperchase/2012/08/gaddafi-son-says-he-will-not-receive-fair-trial-in-libya.php

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The Tort of Nuisance in Tanzania: Distinction between Private and Public Nuisance

Jaba Shadrack, UDSM –School of Law (jaba@udsm.ac.tz )

Etymologically, the term 'nuisance' is derived from a Latin word 'nocere' which means 'to hurt' or 'annoyance'. However, Professor Prosser contends that 'nuisance' is a French word which means nothing more than harm, and that it entered English law at a very early date as the name of a tort against land. Spencer reconciles the two positions by asserting that the term 'nuisance' is a Norman-French, which in turn comes from the Latin 'nocumentum' i.e. harm.

Whatever the origin, the law of nuisance as understood in Tanzania may be traced in the English common law tort. Basically, the term 'nuisance' is defined in the Black's Law Dictionary as a condition, activity, or situation (such as a loud noise or foul odour) that interferes with the use or enjoyment of property; especially, a non-transitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways.

To put it in a nutshell, a nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. Prosser (ante) adds that the interference may be with the use or enjoyment of land, or with a right of easement or servitude over the land. It is distinguished from disseisin in that the plaintiff is not dispossessed, and from trespass in that there is no entry, the defendant's tortious acts occurs outside of the land.

Though a person has a complete dominion and power over his own land and may do with it what he pleases, he is nevertheless bound, agreeably to the maxims, 'Sic utere tuo ut alienum non laedas', and 'Prohibetur ne quis faciat in suo quod nocere posit alieno,' to use his property in such a manner as not to injure his neighbour's. One important point to consider is that the law of nuisance is concerned with the type of harm caused and the interest invaded, rather than the defendant's conduct.

Depending on the school of thought at hand, commonly the doctrine of nuisance is branched into two, namely as 'private' and 'public' nuisances, though other scholars like John Cooke adjoin 'statutory nuisance' as a third branch. Nonetheless, this essay will be centred on the first two branches. Salmond contends that public and private nuisances are not in reality two species of the same genus at all. Taking Salmond's contention as a point of departure, it suffice now to appraise the differences between private and public nuisances in extenso as follows;

First, definitions; a public nuisance is referred to as an unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in the free use of public property. It is also termed as 'common nuisance'. While a private nuisance entails a condition that interferes with a person's enjoyment of property; especially a structure or other condition erected or put on nearby land, creating or continuing an invasion of the actor's land and amounting to a trespass to it.

Second, by origin; public nuisance emanated from acts of encroachment upon the royal domain or the king's highway (purprestures cases), and was redressed by the king's justice in a criminal proceeding. While private nuisance took pace during the English Industrial Revolution as a tool used by the Courts for zoning land for particular purposes (there was no detailed planning law) and to draw a balance between rights of adjacent landowners.

Third, nature of action; every public nuisance is a crime. It acquires its tortious characteristic by virtue of the rule that a person who suffers special damage may bring an action in tort. In A-G V. PYA QUARRIES a quarrying operations were conducted in such a way that local residents were affected by dust and vibrations from explosions. The court pointed out that a public nuisance is one which materially affects the reasonable comfort and convenience of life of a class of her majesty's subjects. The defendant's activities were held to amount to a public nuisance. While a private nuisance, is inherently a civil wrong. The rationale is to balance the defendant's rights to use his land as he wishes and the plaintiff's right to enjoy his land without interference. In HARRIS V. JAMES a field was let by 'S' to 'J' for 'J' to work it as a lime quarry and to set up lime kilns. The plaintiff complained of smoke from a kilns and nuisance caused by blasting in the quarrying. 'J' was liable as occupier and 'S' for authoring the commission of a nuisance.

Fourth, scope (or range) of harm; an alleged conduct must be offensive to a large number of people to sustain a conviction for any public nuisance. It involves a class of people, thus it is widespread in range. For example, in FESTO BALEGELE AND 749 OTHERS V. DAR ES SALAAM CITY COUNCIL, the plaintiffs were residents of Kunduchi-Mtongani. The defendant City Council used this site to dump the city's waste in execution of their statutory duty of waste disposal. The dumped refuse endangered the residents' lives. The plaintiffs' prayer for restraining orders was granted by the High Court. In determining a public nuisance the court will look at the following factors, whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort, or the public convenience; or whether the conduct is proscribed by a statute, ordinance, or administrative regulation; or whether the conduct is of a continuing nature or has produced a permanent or long lasting effect, and, as the person knows or has reason to know, has a significant effect upon the public right. While a private nuisance affects an individual (a person) or a family. For instance, if a farmer has failed to properly dispose of a significant amount of manure, or at least cover up its smells, and neighbours and an adjacent neighbourhood could not avoid the odours; it would constitute a public nuisance. If there was one family immediately adjacent to that property, yet it could be smelled beyond that immediate family it would constitute a private nuisance since it is only affecting the family adjacent to that family. Since there are no neighbours around it would then be considered a private nuisance. In essence, a private nuisance is one that is felt by a single person or perhaps a single family. By contrast, a public nuisance is one whose impact is felt by a large number of people. To sum up this point, Lord Denning LJ in AG V PYA QUARRIES LTD., agreed with Romer LJ, and went on to say that "the classic statement of the difference is that a public nuisance affects Her Majesty's subjects generally, whereas a private nuisance only affects particular individuals..........that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large."

Finally, remedy; since a public nuisance is both a civil wrong and a crime, and there may be penalties such as fines or imprisonment ordered against those responsible for creating the nuisance. Therefore to warrant civil claim (in tort) a plaintiff must prove that he has sustained special damage. This point is elucidated by the case of CASTLE V. ST. AUGUSTINE'S LINKS where the plaintiff car driver was struck by a golf ball hit from the thirteenth tee of the defendants' golf course as he was driving on the highway. Balls frequently went over the highway. The siting of the tee amounted to a nuisance. The class of persons affected were highway users. The plaintiff had suffered special damage, so the defendants were liable in public nuisance. However, it should be borne in mind that in the above case, if the plaintiff at all, had been on his own land the action would have been in private nuisance. In most cases, the remedy for a public nuisance is sought by the affected government, for an individual to have an action for compensation for the inconvenience or interference suffered; they would have to show that the impact was such as to cause them special damage i.e. they must show that the impact on them was greater than that on the general public. While a plaintiff who has filed an action for private nuisance may seek injunction and damages for damage to property. In general, the remedy for private nuisance is a civil suit brought by the offended private citizen against another individual.

Facts which a Plaintiff is bound to Prove in an Action for Nuisance

(a) Private nuisance:

Where the suit is instituted under the caption of private nuisance, normally, the plaintiff is bound to prove the following three facts; namely as Ownership of the land, Interference with the use or enjoyment of the land (i.e. duration, locality, sensitivity, public utility and damage) and or Malice.

(i) Ownership of the land; the plaintiff must show his locus standi in the case at hand, by substantiating that at the time of the complained nuisance he was a possessor or occupier of the land. For example, a tenant, landlord, or has reversionary rights. As per HUNTER V. CANARY WHARF LTD only a person with an interest in the land can sue.

(ii) Interference with use or enjoyment of land; the plaintiff must establish that the defendant has caused a substantial interference with his use or enjoyment of land. The court will not consider trivial interferences. The interferences may take a number of forms but some of the commonest are smells, vibrations, noise, dust, and other emissions. Whether the interference amounts to a nuisance is under the discretion of the Court to determine. However, the plaintiff must prove five factors;-

First, is duration/intensity; that the alleged interference has existed for a considerable lengthy of time (i.e. continuing or deliberate nuisance). As a general rule, a single event or incident do not qualify as a nuisance. In BOLTON V. STONE, the isolated escape of a cricket ball from the ground was held not to be a nuisance. Hence, the court will evoke the reasonableness test to determine this point. However, under the rule of prescription, the plaintiff will be barred to complain against a nuisance that has existed for 20 years.

Second, locality, the plaintiff has to show that the act that amount to a nuisance is carried out in an improper area (e.g., industrial/agricultural/commercial activities in a residential area). For example, making a disruptive amount of noise is more likely to be unreasonable in a quiet rural area than in an industrial zone as it was in STURGES V. BRIDGMAN. In FESTO BALEGELE AND 794 OTHERS V. DSM CITY COUNCIL, Rubama, J argued that by collecting refuse from all over the City to dump it at Kunduchi-Mtongani contrary to the City's Master Plan; while the area is by the city Master Plan not zoned as one of the five sites for refuse disposal but zoned for residential and that there are several people residing there to whom a nuisance has been created was ultravires thus a nuisance.

Third, sensitivity, that the damaged plaintiff's property was not sensitive to defendant's conduct. Veale J., in HALSEY V. ESSO PETROLEUM CO. LTD., held the defendant liable in private nuisance by contending that oily smells went far beyond a triviality and in view of its frequency and intensity it was more than it would affect a sensitive person.

Fourth, public/social utility, it must be proven that the defendant's conduct was not in the public interest or that the defendant has no statutory authority to commit a nuisance. In DENNIS V. MINISTRY OF DEFENCE, Buckley J., ruled that the noise from Harrier jet fighters on a military base used for training pilots bordering the claimant's land was an interference with the enjoyment of the property that no one should be called upon to endure in any location, and that it constituted a nuisance at common law and infringed claimants' human rights. However, he held that training must continue on the base in the public interest.

Finally, damage, the plaintiff in order to succeed in certain instances has to prove damage; this is because the tort of nuisance is not actionable per se. It must be damage to his rights in land and not the person. If the land is physically affected, `damage' may be presumed by the court, even if the claimant cannot show that his land has diminished in value. For example, in HUNTER V. CANARY WHARF LTD., the deposit of dust on the claimant's land was held to be capable of amounting to `damage', even though the claimant had not shown that the value of his land had been adversely affected. So `damage' is a somewhat broader concept in nuisance than in negligence. The damage can be to the amenity of the land, rather than its physical state. If the defendant's actions cause the land to become less valuable, this constitutes an actionable loss of amenity. For example, in TETLEY V. CHITTY, noise from a go-kart track was held to be an actionable nuisance.

(iii) Malice; the plaintiff is duty bound to show that the defendant committed a particular act with evil motive. The bad motive or malice of the defendant may make what would otherwise have been reasonable conduct, unreasonable and a nuisance. In HOLLYWOOD SILVER FOX FARM V. EMMETT , the defendant's shooting was perfectly lawful, and would not have amounted to a nuisance had it not been done with malice.

(b) Public nuisance:

As a general rule, an action to abate/correct a public nuisance must be brought by a government or its agency. In addition to a civil suit, the government could also bring criminal charges against the wrongdoer. The rationale of this rule was echoed in AG. V. PYA QUARRIES LTD, that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it but that it should be taken as the responsibility of the community at large. Besides, Courts do not want multiplicity of suits for an offense that would be within the sphere of the public's prosecuting officer to punish it. However, class or group action (representative suits) also have been allowed in some instances.

Alternatively, there are circumstances that may warrant a person to sue singly for a public nuisance. In this regard, the plaintiff must prove special damage, but he does not need to establish his interest in the land. For example, if dynamiting has thrown a large boulder onto a public highway, those who use the highway cannot maintain a nuisance action for the inconvenience. However, a motorist who is injured from colliding with the boulder may bring a tort action for personal injuries. *This point will be elucidated clearly under Part B of this work.

Essentially, whether it is the Government or an individual suing for public nuisance must establish interference with a public right, damage and malice. In determining whether there is interference with a public right the Court usually will look at the circumstances such as: whether the tortious conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort, or the public convenience; or whether the conduct is banned by a statute, ordinance, or administrative regulation; or whether the conduct is of a continuing nature or has produced a permanent or long lasting effect, and the defendant knows or has reason to know, has a significant effect upon the public right.

Nevertheless, because of the difficulties involved in differentiating public and private nuisances, Courts and Attorneys do not always embark on distinguishing between the two. In JOB EDWARDS LTD. V. BIRMINGHAM NAVIGATIONS , Scrutton, L.J., (dissenting) opined that no difference could be made between public and private nuisances, as far as the incidence of liability for ensuing damage was concerned, and that it was the duty of an occupier to remove a nuisance on his land, of which he knew or reasonably ought to have known. This position was affirmed by the House of Lords in the latter case of SEDLEIGH-DENFIELD V. ST. JOSEPH SOCIETY FOR FOREIGN MISSIONS.

Conclusion:

Generally speaking, there are several nuisance theories on which nuisance claims can be based. The first is strict liability. If the activities of the wrongdoer or the conditions are abnormally dangerous, he can be held strictly liable for resulting injuries, even if he was not negligent. A second nuisance theory is intentional interference with another's enjoyment. This is the most frequently used basis for nuisance suits. The intentional interference must also be considered to be unreasonable [i.e., (a) the gravity of the harm outweighs the utility of the conduct or (b) the harm caused is serious and the cost to compensate for it makes the conduct not feasible]. A third nuisance theory is negligence, where all of the elements must be present: (1) existence of a duty, (2) breach of that duty, (3) causation in fact and proximate causation, and (4) actual damages.

NB: This document is also available in PDF and iPaper (with footnotes) at: www.scribd.com/jabashadrack

REFERENCES:

Books

Abbott, K, (2002), Business Law 7th Ed, Continuum publishers, London

Binamungu, C.S (2002), Law of Torts in Tanzania, Research and Publication Department, Mzumbe

Bryan A. Garner, (2004), Black's Law Dictionary, 8th Ed, Thomson West

Cooke John, (1999), Law of Tort 4th Ed, Financial Times Pitman Publishing

Juma I.H. (2007), Learning materials: Law of Tort, DUP

Lewthwaite, J. (2004), Tort Law, Oxford University Press, New York

Restatement (Second) of Torts (1979)

Salmond & Huston, Law of Tort 20th Ed, Sweet & Maxwell, Universal Law Publishing Co. Pvt. Ltd, London

Journal Articles:

Anonymous: Nuisance: Public Nuisance - Suit by Private Citizen, in Columbia Law Review: Columbia Law Review Association, Inc. Vol. 24, No. 7 (Nov., 1924), p. 806

Anonymous: Who May Recover for Injury from a Nuisance? In Columbia Law Review: Columbia Law Review Association, Inc. Vol. 13, No. 5 (May, 1913), pp. 433-434

Elvin, J. The Law of Nuisance and the Human Rights Act, in Cambridge Law Journal: Cambridge University Press, Vol. 62, No. 3 (Nov., 2003), pp. 546-548

Friedmann, W., Incidence of Liability for Nuisance, in Modern Law Review: Blackwell, Vol. 4, No. 2 (Oct., 1940), pp. 139-144

Gevurtz, F., Obstruction of Sunlight as a Private Nuisance, in California Law Review: California Law Review, Inc., Vol. 65, No. 1 (Jan., 1977), pp. 94-119

Hodas, R.D., Private Actions for Public Nuisance: Common Law Citizen Suits for Relief From Environmental Harm, in Ecology Law Quarterly: Vol. 16:883, 1989, p. 883-908

Keeton, P., Trespass, Nuisance, and Strict Liability; in Columbia Law Review: Columbia Law Review Association, Inc. Vol. 59, No. 3 (Mar., 1959), pp. 457-475

Prosser, W.L., Private Action for Public Nuisance, Virginia Law Review: Vol. 52, No. 6 (Oct., 1966), pp. 997-1027

Spencer, J. R., Public Nuisance: A Critical Examination, in Cambridge Law Journal: Cambridge University Press, Vol. 48, No. 1 (Mar., 1989), pp. 55-84

Thayer, E.R., Public Wrong and Private Action, in Harvard Law Review: The Harvard Law Review Association, Vol. 27, No. 4 (Feb., 1914), pp. 317-343

Useful Web Links:

http://law.jrank.org/pages/8867/Nuisance-Public-Nuisance.html

http://www.jstor.org

http://www.lawhandbook.org.au/handbook/ch10s02s02.php

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The Tort of Nuisance in Tanzania: Instances in which the ‘same act’ is both a Public and Private Nuisance.

Jaba Shadrack, UDSM –School of Law (jaba@udsm.ac.tz )

The law of nuisance has been the traditional means used by courts to balance competing interests of landowners to use land as they see fit against the duty not to use it to injure a neighbour. No one is liable in nuisance unless he either has created the nuisance, or, when it has been created by the act of a trespasser or otherwise without the authority or permission of the occupier, unless he suffers it to continue without taking reasonably prompt and efficient means for its abatement. In other words, the liability for nuisance is conditional upon the defendant having acted either wilfully or negligently in regard to it.

To be considered public, the nuisance must affect an interest or interfere with a right common to the general public. It is not enough that it disturbs one individual, even in the use of his land, that is why, even a number of interferences with private rights will not add up to interference with the public.

Instances of Public Nuisance

The common law rules against public nuisance were developed, in part, for the protection of the public welfare i.e. that is 'nocumentum iniuriosum propter commune et publicam utilitatem'.

Industry nuisances: a manufacturer who has polluted a stream or river might be fined and might also be ordered to pay the cost of clean-up.

Public health nuisances: such as keeping of diseased animals or a malarial pond, or carrying a person with communicable diseases (e.g., a child with smallpox) along the highway.

Public safety nuisances: include shooting fireworks in the streets, storing explosives, practicing medicine without a license or not qualified, or harbouring vicious animals, or presence of unhitched and unattended animal in the street.

Public morals' nuisances (noxious trades): houses of prostitution (brothel), illegal liquor establishments, gaming houses, indecent exhibitions (exposures), bullfights, public profanity and unlicensed prize-fights are examples of nuisances that interfere with public morals.

Disruption of the public peace nuisances: for instance, by loud and disturbing noises, or artistic performances that threatens to cause a riot, or upon interference with the public comfort as in the case of bad odours, smoke, dust and vibration.

Abuses of the Highway: obstructing public ways or highways or a navigable stream, or creating a condition to make travel unsafe or highly disagreeable, collection of an inconvenient crowd are examples of nuisances threatening the public convenience.

Architecture: A public nuisance is said to exist in a building, structure, or premise: (a) if it is insufficiently cleaned, drained, lighted, or ventilated for the intended usage, (b) if it poses conditions detrimental to public health or dangerous to human life, and/or (c) if its air or water supplies are unwholesome.

Instances in which the Same Act is both a Public and Private Nuisance

In various scholarly works, acts that are both public and private are termed as 'mixed nuisance'. The phrase 'mixed nuisance' is defined to mean a condition that is both a private nuisance and a public nuisance, so that it is dangerous to the community at large but also causes particular harm to private individuals. In R. V. STEPHENS, Mellor J., (pp.708-709) and Blackburn J., (p.710) respectively, agrees that no private individual, without receiving some special injury, could maintain an action in a public nuisance.

A nuisance may be both public and private in the following instances;

Special injury rule; applies where a large group is affected but some individuals are injured in unique ways. The rule reads as 'where one man has greater hurt or inconvenience than any other man had ... then he, who had more displeasure or hurt, etcetera., can have an action to recover his damages that he had sustained by reason of this special hurt.' Under this rule, a private litigant could bring an action for public nuisance only if he could show particular, personal damage not shared in common with the rest of the public. For example, in ANDERSON V. W.R. GRACE & CO., the plaintiffs sought damages for physical injuries caused by the pollution of public wells, from which their water was drawn, and the groundwater under their homes. The Court held that the plaintiffs had a locus standi to maintain an independent action because injuries to a person's health are by their nature special and not common to the public. Further, in the US case of EDIMUNDS V. DUFF, where the defendant was about to build an amusement park in an exclusive residential district, the plaintiff, a resident of the district, brought suit to enjoin the building of the park. It was held for the plaintiff that he was threatened by a special loss, and defendant's threatened act would be a public nuisance.

HALSEY V. ESSO PETROLEUM CO., LTD., illustrates the interrelation and overlapping of liability in public and private nuisances. In this case, the plaintiff was the owner and occupier of a house in a residential area. The defendants owned and operated oil storage and issuing depot in an adjoining industrial area where there was other premises dealing with oil. In the depot opposite the plaintiff's house there was a boiler used in connection with the heating of fuel oil. The boilers were heated by burning oil and the chimneys acid smuts were emitted which damaged the plaintiff's washing hung out to dry in his garden, and damaged the paint work of his car standing in the street outside his house. The depot emitted pungent nauseating oily smells which grew in intensity and frequency. Since 1956 the defendants introduced a night shift and thereafter the noise from the boilers reached 68 decibels, despite every effort by the defendants to minimize it. The noise caused the plaintiff's window and doors to vibrate and prevented him from sleeping. Further, at intervals throughout the night, there was a very loud noise from heavy oil tankers which arrived at and left the depot at points near to and opposite the plaintiff's house. Sometimes when they passed in convoy the noise was 83 decibels. The noise from the tankers was made partly in the public highway and partly in the depot.

Veale, J., held the defendants liable in an action by the plaintiff for nuisance by smuts, smells and noise as follows; (a) for emission of acid smuts which caused damage to the plaintiff's washing hanging on his land and to his car standing in the street, they were liable; for damage to the washing there was liability in private nuisance. They were also liable for damage to his motor car as for a public nuisance in respect of which the plaintiff had suffered special damage. (b) For the smells there was liability in private nuisance. It was more than a general background of oily smells, it went far beyond a triviality and in view of its frequency and intensity it was more than it would affect a sensitive person. In Veale's words, it was 'horrible', 'stinking', 'pungent' and 'nauseating'. In the circumstances, injury to health was not a necessary ingredient in an action for nuisance by smell. (c) The noise from the boilers and the tankers while in the depot at night was actionable as a private nuisance. Since it was an inconvenience materially interfering with the ordinary comfort physically of human existence according to the plain sober and simple standards among ordinary people living in Fulham, for the ordinary man takes his rest at night. (d) The noise from tankers at night on the highway was a public nuisance, for the concentration of particularly noisy vehicles outside the plaintiff's house was an unreasonable use of the highway, in just the same way as parking a number of unlit vehicles on the road, and the plaintiff had suffered special damage by it. Further, it was a private nuisance, as it constituted interference with the plaintiff's enjoyment of his house.

In certain circumstances where the public nuisance substantially interferes with the use of an individual's adjoining land. For example, pollution of a stream (or river) might constitute both a public and a private nuisance. Thus the pollution of a stream (or river) which merely affects a large number of river bank owners is a private nuisance only, but it becomes a public one when it kill fishes. It is not, however, necessary that the entire community be affected, so long as the nuisance will interfere with those who come in contact with it in the exercise of the public right. The obvious illustration, of course, is the obstruction of a public highway which inconveniences only those who are travelling upon it. The rationale is that any condition or activity that substantially interferes with the private interests of any considerable number of individuals in a community will normally interfere also with some public right.

There are also some statutes which create torts that are both private and public nuisance in nature, and therefore in rare situations statutes do authorise individual persons to sue on behalf of the public (state). The good example of this is 'environmental statute'.

At this juncture, it suffices to note that what peculiar or special damage is sufficient to enable a private party to sue is a question which courts have found difficult to decide. Some cases have maintained that the private party must suffer damages different in kind from those suffered by the public. In LIVINGSTON V. CUNNINGHAM, for example, the plaintiff used a highway daily for his business purposes, and an obstruction put on the road by the defendant made him use a less convenient road, but the court held that he could not sue to abate the nuisance because his damages were not different in kind from those suffered by the public. But again, the Courts have interpreted the rule to mean that the private litigant must suffer losses greater only in degree from those suffered by the public; as in GULF STATES STEEL CO. V. BEVERIDGE.

However, Professor Prosser, point out several ingredients that may be proven to give a private individual a locus standi to sue in a public right; first, that he must have suffered damage of a kind and degree different from those sustained by members of the public in general. Second, that he has sustained physical injury special and particular to him, rather than common to the public. Third, as in HART V. BASSETT, a plaintiff can recover damages by proving pecuniary loss in a public nuisance claim. Fourth, when a public way is obstructed, the plaintiff may prove delay and inconvenience of a detour as special harm suffered by him. Fifth, that the public nuisance has deprived him the access to land so as to constitute sufficient particular damage, for example when the land of the plaintiff is entirely cut off, whether by land or by water. Finally, a private litigant may sue in a public nuisance where the nuisance substantially interferes with the use or enjoyment of his rights in the land.

Conclusion:

At common law, the same act or structure may be a public nuisance, also a private nuisance as to a person who is thereby caused a special injury other than that inflicted upon the general public. As we have seen, the private individual can recover in tort for a public nuisance only if he has suffered harm of a different kind from that suffered by other persons exercising the same common right. However, it is not enough that he has suffered the same kind of harm or interference to a greater extent or degree.

In addition to the requirement that the plaintiff have suffered an injury different from that suffered by the public, the plaintiff must have suffered the injury in the exercise of a public or common right. By a public right, it means a right that is common to all members of the general public. Therefore, when the nuisance, in addition to interfering with the public right, also interferes with the use and enjoyment of the plaintiff's land, it is a private nuisance as well as a public one i.e. mixed nuisance.

NB: This document is also available in PDF & iPaper (with footnotes) at:
www.scribd.com/jabashadrack


REFERENCES:

Books

Abbott, K, (2002), Business Law 7th Ed, Continuum publishers, London

Binamungu, C.S (2002), Law of Torts in Tanzania, Research and Publication Department, Mzumbe

Bryan A. Garner, (2004), Black's Law Dictionary, 8th Ed, Thomson West

Cooke John, (1999), Law of Tort 4th Ed, Financial Times Pitman Publishing

Juma I.H. (2007), Learning materials: Law of Tort, DUP

Lewthwaite, J. (2004), Tort Law, Oxford University Press, New York

Restatement (Second) of Torts (1979)

Salmond & Huston, Law of Tort 20th Ed, Sweet & Maxwell, Universal Law Publishing Co. Pvt. Ltd, London

Journal Articles:

Anonymous: Nuisance: Public Nuisance - Suit by Private Citizen, in Columbia Law Review: Columbia Law Review Association, Inc. Vol. 24, No. 7 (Nov., 1924), p. 806

Anonymous: Who May Recover for Injury from a Nuisance? In Columbia Law Review: Columbia Law Review Association, Inc. Vol. 13, No. 5 (May, 1913), pp. 433-434

Elvin, J. The Law of Nuisance and the Human Rights Act, in Cambridge Law Journal: Cambridge University Press, Vol. 62, No. 3 (Nov., 2003), pp. 546-548

Friedmann, W., Incidence of Liability for Nuisance, in Modern Law Review: Blackwell, Vol. 4, No. 2 (Oct., 1940), pp. 139-144

Gevurtz, F., Obstruction of Sunlight as a Private Nuisance, in California Law Review: California Law Review, Inc., Vol. 65, No. 1 (Jan., 1977), pp. 94-119

Hodas, R.D., Private Actions for Public Nuisance: Common Law Citizen Suits for Relief from Environmental Harm, in Ecology Law Quarterly: Vol. 16:883, 1989, p. 883-908

Keeton, P., Trespass, Nuisance, and Strict Liability; in Columbia Law Review: Columbia Law Review Association, Inc. Vol. 59, No. 3 (Mar., 1959), pp. 457-475

Prosser, W.L., Private Action for Public Nuisance, Virginia Law Review: Vol. 52, No. 6 (Oct., 1966), pp. 997-1027

Spencer, J. R., Public Nuisance: A Critical Examination, in Cambridge Law Journal: Cambridge University Press, Vol. 48, No. 1 (Mar., 1989), pp. 55-84

Thayer, E.R., Public Wrong and Private Action, in Harvard Law Review: The Harvard Law Review Association, Vol. 27, No. 4 (Feb., 1914), pp. 317-343


Useful Web Links:

http://law.jrank.org/pages/8867/Nuisance-Public-Nuisance.html

http://www.jstor.org

http://www.lawhandbook.org.au/handbook/ch10s02s02.php

Read More

Court: Kenya's next Election in March 2013

                                                    By Paul Ogemba

(Appellate Judges Kalpana Rawal, Erastus Githinji, Hannah Okwengu, David Maranga and Martha Koome)

Summary of the Rulings:

(1) Justice David Maraga: Next polls to be held in March 2013.

(2) Justice Kalpana Rawal: Next General Election to be held in March 2013.

(3) Justice Hannah Okwengu: Election to be held 60 days after expiry of Parliament in January 14, 2013. Next polls in March 2013.

(4) Justice Erastus Githinji: The next General Election should be held in March 2013. IEBC date of March 4, 2013 should be adhered to.

(5) Justice Martha Koome: Elections should be on or before January 15, 2013

The Court of Appeal has upheld a lower court's ruling that the next Kenya General Election will be held in March 2013. A majority bench ruled that the March 4, 2013 date set out by Independent Electoral and Boundaries Commission (IEBC) be "adhered to".

Only Justice Martha Koome issued a dissenting ruling. The judge ruled that the polls should be held on or before January 15, 2013.

Justice Koome ruled that Parliament's life should not exceed a five-year cycle and said the House should be dissolved on November 14, 2012.

She ruled that the High Court misinterpreted the Constitution and the two alternatives given by court were unconstitutional. The judge declared them null and void.

However, four appellate judges ruled that Kenyans will go to the polls in March next year.

Judges Erastus Githinji, Kalpana Rawal, Hannah Okwengu and David Maranga upheld a decision reached by the High Court in January regarding the election date.

Justices Isaac Lenaola, David Majanja and Mumbi Ngugi ruled that the elections will be held in March, 2013 after the expiry of the current Parliament's term unless the President and the Prime Minister agree in writing to dissolve the Coalition Government.

Following the decision and the failure by the two principals to indicate whether they will dissolve the government, the IEBC went ahead to fix the election date on March 4, 2013. However, two lobby groups, the Centre for Rights Education and Awareness (CREAW) and the Caucus for Women's Leadership appealed against the High Court ruling claiming that the judges misinterpreted the Constitution.

Source: Daily Nation (31/07/2012):
http://www.nation.co.ke/News/politics/Kenya+next+election+in+March+2013/-/1064/1467636/-/v7dvz/-/index.html

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