LAW OF TORT

Introduction
Tort is a civil wrong. It is an act which causes harm to a determinate person whether intentionally or not,
not being a breach of a duty arising out of a person relationship or contract and which is either contrary
to the law, or an omission of a specific legal duty, or violation of an absolute right.
1.Prof. P H Winfield, Tortious Liability arises from breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressable by an action for unliquidated damages.
2.Sir John Salmond defined Tort as a civil wrong for which the remedy is common law action for
unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other
merely equitable obligation.

Characteristics of Tort
 Tort is a private wrong, which infringes the legal right of an individual or specific group of
individuals.
 The person, who commits tort, is called "tort-feasor" or "Wrong doer"
 Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by him.
 Tort is a specie of civil wrong.
 Tort is other than a breach of contract
 The remedy in tort is unliquidated damages or other equitable relief to the injured.

Note; Liquidated damages should be distinguished from unliquidated damages.

Liquidated damages- this is a specified amount of compensation. The law is usually clear on what the
liable party pays or the parties themselves have already agreed to the compensation

Unliquidated damages- this kind of compensation is unspecified and the court will rely on the nature of
the case to determine it.

NATURE OF TORT
This liability arises once there is a breach of duty which is primarily fixed by the law. Generally the
plaintiff has to prove that he suffered harm and there was violation of his legal rights. Some actions,
however, are actionable per se, i.e, without proof of injury, e.g. trespass to land.

The liability and remedy of a party in torts will depend on the following general principles:
1.Damnum sine injuria (harm without legal injury)

This basically means the causing of damage without the violation of a legal right. Such a case is not a
valid claim in the court of law. The fact that the man is injured by another man's act does not by itself
constitute a cause of action; this may be even if the injury- causing act is intentional or deliberate. A
violation of the legal right is required in order for a valid cause of legal action to exist.

In mogul steamship company v.mc Gregory gow and company , where a number of steamship
companies conspired and drove another tea-carrier company out of business by offering lesser rates.
Even though the plaintiff was financially injured, the House of Lords ruled that the other companies
were entitled to indulge in such competitive practices and therefore there was no cause of action.

2. Injuria sine Dumno

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This refers to a situation where one suffers a violation of his legal rights without actual injury or damage,
e.g. trespass to land. In such instance the person is entitled to remedy.

In, Ashbay Vs. White, the defendant, a returning officer at a voting booth, wrongfully refused to register
a duly tendered vote of the plaintiff, who was a qualified voter. The candidate for whom the vote was
sought to be tendered was elected. So no loss was suffered by the plaintiff for rejection of his vote.
The Court held that violation of the plaintiff’s right was an injury to him for which he must have a
remedy without proof of actual damage.
Tortious liability can also be determined on the basis of the fault principles. In this case it is necessary to
establish some fault on the part of the wrongdoer before he can be made liable. Fault principle is
determined in three ways;

 Intention- where one does a wrongful act intending the consequences

 Recklessness- doing an act without regarding the consequences
 Negligence- this is doing something that a reasonable person would not do, or omitting an
action that a reasonable person would do.

GENERAL DEFENSES IN TORTS

If one sues the other claiming that the other person has violated his rights and in so doing has
committed a tort, then certain defenses are available to the defendant. The extent to which they apply
against different torts, may, however, differ. Some of the defenses which can be used in torts are:
1. Volenti non Fit Injuria
2. Inevitable Accident
3. Act of God
4. Self-defence
5. Mistake.
6. Necessity
7. Statutory Authority

1. Volenti Non Fit Injuria

This refers to „voluntary taking of a risk'. It's when a person chooses to be in the situation that causes
the injury. For example, suppose you are a spectator at a cricket match , the batsman hits a six, and the
ball lands on your head, then you cannot claim for compensation either from the stadium authorities or
the batsman because when you took a seat in the stadium, you accepted the risks while sitting in the
stadium. Therefore if the defendant can prove that the plaintiff voluntarily put himself in that situation,
he can escape liability.

The most important thing to remember is that the action must be voluntary i.e. with the informed
consent of the relevant person.
There are two things which should be established in order to use this defense.

a) That the plaintiff knew or could have expected the risks involved in such a situation.
b) That the person agreed by a statement or conduct, to suffer the consequence of the risk without
force or compulsion or threat.

Khimji v. Tanga Mombasa Transport Co. Ltd. (1962).

The plaintiffs were the personal representatives of a deceased who met his death while traveling

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as a passenger in the defendant’s bus. The bus reached a place where the road was flooded and it
was risky to cross. The driver was reluctant to continue the journey but some of the passengers,
including the deceased, insisted that the journey should be continued. The driver eventually yielded and
continued with some of the passenger, including the deceased. The bus got drowned
together with all those aboard it. The deceased’s dead body was found the following day. Held: The
plaintiffs’ action against the defendants could not be maintained because the deceased knew the risk
involved and assumed it voluntarily and so the defence of volenti non fit injuria rightly applied.

Apart from instances like those of the above case, the defence of ‘volenti’ has been pleaded in a
number of situations, including the followings:
a. A passenger injured by the act of a driver whom he knew to be under the influence of drink at
the material time.
b. A spectator at a game, match or competition injured by the act of the players of participants.
c. A patient injured by the act of his surgeon, where the patient has consented to the operation.

The viability of the defence depends on the circumstances of each case; otherwise the consenting party
does not, by his consent, necessarily give an open cheque to the other party to
act negligently, high-handedly or in any manner he pleases.

Haynes v. Harwood, (1935)

The defendant’s servant left a van and horses unattended in a crowded street. A boy threw a stone at
the horses and they bolted. This exposed a woman and some children nearby to some
grave danger. The plaintiff, a police constable, managed to stop both horses; but he did so at great
personal risk and in fact sustained severe injuries. In an action brought against him, the defendant
pleaded volenti.
Held:
1. The doctrine of country assumption of risk did not apply because the plaintiff, in rescuing the
persons in imminent danger, had acted under an emergency caused by the defendant’s wrongful act.
2. It was immaterial that the persons to be saved were strangers, and the defendants were liable.

2. Inevitable accident
When an injury is caused to a person by an event that could not be foreseen and avoided despite
reasonable care on the part of the defendant, the defense of inevitable accident can be used. For
instance, by „inevitable' it is not meant that the accident was bound to happen, but rather, that the
accident could not have been avoided despite reasonable care.
Stanley v. Powell, (1891)
The plaintiff was employed to carry cartridges for a shooting party. A member of the party fired at a
pheasant but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. The plaintiff sued.
Held: the defendant was not liable as the plaintiff’s injury resulted from an inevitable accident.

3. Act of God
This defense is similar to the defense of inevitable accident according to me. The only difference is that
in the defense of Act of God the accident happens to occur because of unforeseen natural event. The
requirements which are to be satisfied are
(a) The injury most be caused by the effect of natural forces
(b) The natural forces must be unforeseen, or the effects must be unavoidable.
So even if a natural event like a storm is taking place, if one can take precautions and avoid the damage,
the defense cannot be used.

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Nichols v. Marsland, (1876)
The defendant had a number of artificial lakes on his land. An unprecedented rain such as had never
been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried
away four bridges belonging to the plaintiff’s bridges were swept by act of God and the defendant was
not liable.

4. Self defense
If one injures someone, or something that belongs to someone else, while defending self or own
property, then one can be excused if the force used to protect self was reasonable. For instance, if
someone punches you on stomach and you shoot him that would be an excessive use of force which is
not necessary for defending yourself.
The following must be satisfied in order to claim this defense:

a) The defendant must be under threat or under attack

b) The defense must be for self-defense and not for revenge
c) The response must be proportional to the attack or threat.

The principle for this is that the law will not hold you responsible for an action that you performed in
order to save or protect yourself. If, however, it was not necessary to use force for protection, the law
will not protect, and you can't use this defense.
Cresswell v. Sirl, (1948)
A dog owned by plaintiff, C, attacked during the night some ewes lambs owned by S. The dog had just
stopped worrying the sheep and started towards S, who shot it when it was 40 yards away. C sued for
trespass to goods (dog). Held: S was justified in shooting the dog if
(i) it was actually attacking the sheep; or
(ii) if left the dog would renew the attack on them, and shooting was the only practicable and
reasonable means of preventing revival. The onus on justifying the trespass lay on the defendant.

An occupier of property may also defend his property where his interest therein is wrongfully interfered
with. Once again, reasonable force must be used in the defence of property. A trespasser, for instance,
may be lawfully ejected using reasonable force. The

use of force which is not called for in the circumstances entails legal liability on the part of the person
purporting to defend his property.

5. Mistake
Mistake is not usually a defense in tort law. It's not good enough to say that you didn't know you were
doing something wrong. This defense can be used in case of malicious prosecution. In malicious
prosecution it must be shown that the prosecution was acting with malice.

6. Necessity
In necessity, you have to show that the act you did was necessary in the circumstances. For instance, if
one enters someone's private land in order to collect water from his well to put out a fire in his house,
that the person was prompted by necessity and the defense could be used in tort claim and it could be
used against trespass of property. The level of necessity should be very high. Basically the wrong done
should be smaller in comparison to the importance of right done.

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Cope v. Sharpe (1912)
The defendant committed certain acts of trespass on the plaintiff’s land in order to prevent fire from
spreading to his master’s land. The fire never in fact caused the damage and would not have done so
even if the defendant had not taken the precautions he took. But the danger of the fire spreading to the
master’s land was real and imminent.
Held: The defendant was not liable as the risk to his master’s property was real and imminent and a
reasonable person in his position would have done what the defendant did. In view of the difficulty
posed by the above defence, it is not advisable for a defendant to rely solely on it, especially where
there are other defences. It is safer to plead it as an alternative to another defence.

7. Act under Statutory Authority

This defense is valid if the act done was under the authority of some statute. For example, if there is a
railway line near your house and the noises of the train passing disturbs then you have no remedy
because the construction and the use of the railway is authorized under a statute. However, this does
not give the authorities the license to do what they want unnecessarily; they must act in a reasonable
manner.

Voughan v. Taff Vale Railway Co. (1860)

A railway Company was authorized by statute to run a railway which traversed the plaintiff’s
land. Sparks from the engine set fire to the plaintiffs woods.

Held: that the railway company was not liable. It had taken all know care to prevent emission of sparks.
The running of locomotives was statutorily authorized.

CAPACITY TO SUE OR BE SUED IN TORT

The general rule is that any person may sue or be sued in tort. All persons are subject to the same laws.
However, some special rules apply in certain circumstances which restrict, forbid or qualify the right to
sue or be sued. It means certain persons cannot sue, while some other persons cannot be sued.

Capacity means the capacity of parties or persons to sue or to be sued in law of torts. The capacity of
various persons in the law of torts is explained as under:

The Government
The Government Proceedings Act (Cap 40) makes the Government subject to liabilities in tort as if it
were a private person mf full age and capacity. Section 4 (1) of this Act provides that the Government is
liable.

a) in respect of torts committed by its servants or agents;

b) in respect of any breach of those dutie3 which a person owes to his servants or agents at
common law by reason of being their employer; and
c) in respect of any breach of the duties attaching at common law to the ownership, occupation,
possession or control of property.

The Government is also liable for statuary torts i.e. torts arising from breach of a duty imposed by
statute. However, the Government is not liable for anything done by any person when discharging any

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responsibilities of a judicial process (Sec. 4 (5).The Government is not also liable for trots committed by
public officers who are appointed and paid by local authorities, or members of public corporations like
Kenya Railways, Maize and Produce Board of Kenya e.t.c.

Infants and Minors

At a general rule minority is no defense in tort. Infants can sue and `e sued in the same way as any other
person. However, the age of an infant may be relevant in some torts where intentions, malice, or
negligence of the wrongdoer are the main cause of the tort. In the case of negligence, the infant may
not have reached the stage of mental development where it could be said that he should be found
legally responsible for his negligent acts. A child may be also guilty of negligence if old enough to take
precautions for his own safety.

Burnard v. Haggis, (1863)

A minor hired a horse for riding and was told by the owner not to jump over it. But he jumped the horse
and injured it.

Held: The minor was liable for his tort which was of independent of the contract. Generally, a parent or
guardian is not liable for the torts of his children unless he authorizes the tort. But a parent or guardian
is liable for torts committed by children in negligence.

Bebee v. Sales, (1916)

A parent permitted his son aged 15 to remain in possession of a shotgun, with which the son had already
caused harm and in respect on which complaints had been made.
Held: the father was liable for injury to another boy’s eye

Husband and Wife

The position of husbands and wives in tort is covered by two English statutes. These are: the Married
Women’s Property Act 1882 and the Law Reform (Married Women and Tortfeasors) Act, 1835. The
former Act is a statute of general application is Kenya. The latter statute applies in Kenya to the extent
of paragraphs (b) and (c) of question 1.

A married woman is liable in tort and may sue or be sued in tort in the same way as though she were a
female sole (i.e. a single of unmarried woman). A wife can sue her husband in tort for the protection of
her own property.

The President
The Constitution of Kenya (Kenya 14) provides that the President of Kenya is not “liable to any
proceedings whatsoever in any court.”It means that no civil or criminal proceedings can be instituted
against the President while he is in office.

Heads of State and Diplomats

The Heads of foreign states, diplomats of foreign missions and certain other persons connected to them
are immune from the jurisdiction of the local courts. Their immunity is provided by the Vienna
Convention of Diplomatic Relations, signed in 1961, the relevant articles of which are given the force of
law in Kenya by “The Privileges and Immunities Act (cap. 179)”.

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The accredited diplomats and their staff families enjoy immunity from the criminal and (subject to
specified exceptions) from the civil and administrative jurisdiction of the local courts. The immunity does
not extend to Kenyans who are employed by diplomatic missions. Representatives of the United Nations
Organization and its specialized agencies can also claim diplomatic immunity. Although the diplomats
and their staff cannot be sued under the law of tort but it is always open to the Ministry of Foreign
Affairs to declare a diplomat ‘persona non grata’, thereby requiring his removal from Kenya.

Corporations
The corporations can sue and be sued in their own names. They are liable to actions in tort.

A corporation is also liable for torts committed by its servants and agents. But if a servant of a
corporation commits a tort which is ‘ultra vires’ (beyond powers) then the corporation is not liable.
Similarly, a corporation is not liable for some torts of personal nature e.g. personal defamation, battery
e.t.c.

Trade Unions
The trade unions have capacity to sue in tort but actions against them in tort are limited. Section 23 of
the Trade Unions Act (Cap. 233) provides that no action shall be brought against a trade union for torts
committed by its members or officials in respect of any act done in contemplation or in furtherance of a
trade dispute. For example, if a trade union calls a strike, it cannot be sued by an employer for the tort
of inducing a breach of contract.

Persons of Unsound Mind

These are generally liable in tort unless intent is a necessary element and their condition is such that
they could not have formed such intent.

Morriss v. Marsden, (1952)

Defendant took room at a Brighton hotel. While there he attacked the manager of the hotel (plaintiff). It
was established that defendant was suffering from disease of the mind at the time of the attack; that he
knew the nature and quality of his act, but he did not know that what he was doing was wrong. Held:
That as defendant knew the nature and quality of his act he was liable in tort for the assault and battery.
It was immaterial that he did not know that what he was doing was wrong.

Aliens or Non-Citizens
An alien is under no disability and can sue and be sued. However an enemy alien cannot sue, but if sued
can defend himself.

Judicial officers
Judicial officers are protected from civil liability for any act done or ordered by them in the discharge of
their judicial functions. Thus, where a judge or magistrate utters words which tend to reflect on a
person’s reputation, or orders a party’s property to be attached in satisfaction of a judgment-debt, no
action can respectively be brought against him for trespass. Besides judicial officers, officers of the court
are also protected against civil liability for acts done in pursuance of a judicial order or warrant. This
means that a court broker cannot be sued for attaching property under a warrant dully issued by court,
as long as he acts within the powers conferred on him by the warrant. The protection to judicial officers
and officer of court is afforded by the Judicature Act (cap.8) Section 6.

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MALICE

In tort malice come out in two ways;

(a) The intentional doing of some wrongful act without proper excuse
(b) To act with some collateral or improper motive.

It is the second that is usually referred to and it is worth noting that in torts in that sense malice
becomes irrelevant in tort, i.e. if a person has a right to do something then his motive in doing it is
irrelevant.

Bradford Corporation v Pickles (1895)

The defendant extracted water in undefined channels with the result that the water supply to the
plaintiffs‟ reservoir was reduced. The defendant‟s motive in doing this was to force the plaintiffs to buy
his land at his price. The action failed, as the defendant had a right to extract the water. As he had such
a right, his motive, even if malicious, was irrelevant.

There are two groups of exceptions to this basic principle:

1. Where malice is an essential ingredient of the tort, for example, in malicious prosecution, the
plaintiff must prove not only that the defendant had no grounds for believing that the plaintiff was
probably guilty, but also that the defendant was activated by malice. The reason for this requirement is
that policy in this area favours law enforcement over individual rights. The result of the requirement is
that there are few successful cases of malicious prosecution.

2. There are also torts where malice may be relevant to liability. For example, in nuisance malice
may convert what would have been a reasonable act into an unreasonable one.

Christie v Davey (1893)

Plaintiff and defendant lived in adjoining houses. The plaintiff gave music lessons and this annoyed the
defendant. In retaliation the defendant banged on the wall and shouted while the lessons were in
progress. The plaintiff was held to be entitled to an injunction because of the defendant‟s malicious
behaviour.

NEGLIGENCE

This is one of most important torts in law. In Blyth v. Birmingham Waterworks Co. (1856) it was defined
as;

The omission to do something which a reasonable man, guided upon those consideration which
ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a
reasonable man would not do.

Elements of negligence
1. Legal duty of care
2. Breach of the legal duty of care
3. Loss or damage to the plaintiff

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These elements must be in place before the defendant can be liable

Duty of care

This is the duty to take reasonable care to avoid acts or omissions reasonable foreseeable as to likely
cause injury to your neighbour, your neighbor being anyone likely to be affect by your actions or
omission.

This started in a negligence case of Donoghue v Stevenson (1932) where the claimant (Mrs. Donoghue)
went to a café with a friend. The friend bought her a drink of ginger beer and ice cream. The bottle of
ginger beer had dark glass so that the content could not be seen.
After drinking some of it, Mrs. Donoghue poured the rest out and then saw that it contained a dead (and
decomposing) snail. This appalled Mrs. Donoghue and she became ill as a result of the sight and the
ginger beer she had already drunk.

Mrs. Donoghue had no direct claim against the manufacturer or the shopkeeper based on contract
because she did not buy the ginger beer. Mrs. Donoghue’s friend could claim against the café in
contract, but had not suffered any loss apart from the fact that she had bought defective goods; she
could get her money back, but nothing for Mrs. Donoghue’s illness. Therefore, Mrs. Donoghue claimed
damages against the manufacturer,

Stevenson. Her claim was for the resulting shock and stomach upset, which she claimed was caused
through drinking the ginger beer.

The court had to decide whether her claim against the manufacturer of the ginger beer could succeed.
This led to Lord Atkin‟s famous statement:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and
the lawyer’s question, „Who is my neighbour?‟ receives a restricted reply. You must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The answer seems to be: persons who are so closely and
directly affected by my act that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in question.”

The duty of care principle should fit the the three-part test in the case of Caparo v Dickman (1990).

1. It was reasonably foreseeable that a person in the claimant’s position would be injured,
2. There was sufficient proximity (closeness) between the parties,
3. It is fair, just and reasonable to impose liability on the defendant.

All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the
claimant. Each part must be explained and proved separately.
Breach of duty of care

This means falling below given standards of care. Standard of care means the standards through which
the defendants conduct is measured. Breach of duty is measured objectively by the „reasonable man

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test‟. The reasonable man is the ordinary person performing the particular task: he is expected to
perform it reasonably competently. Thus, when I am driving my car, I am expected to be a reasonably
competent driver who can drive a car.

For a breach of duty to occur, the court will take four factors into account:

1. The degree of risk involved: the greater the risk, the more the defendant has to take care.
(Bolton v Stone 1951).
2. The cost of precautions: the courts will see how high the risk is involved, and then take into
account the expense of taking precautions to prevent that risk (Bolton v Stone and Latimer v AEC)
3. Potential seriousness of injures: so if there is a very high risk of serious injury, the more the
defendant needs to be very careful (Paris v Stepney B.C. 1951).
4. The importance of the activity: in an emergency, sometimes it is not possible to reflect, think of
a possible risk (Marshall v Osmand 1982).

Injury to the plaintiff

Having given proof of the above two the plaintiff still has to prove that he/she suffered some injury
before the defendant can be liable for negligence.

There are a number of tests that are used when assessing the injury such as;

Causation – „But for Test‟

Would the damage have happened had it not been for the breach of duty?

This can be seen Barnett v Chelsea and Kensington Hospitals (1969) where three night- watchmen went
to Accident & Emergency complaining of sickness after drinking tea made by a fourth man. A nurse
telephoned the doctor on duty, who did not come to examine the men but instead sent the men home
and told them to go and see their own doctors in the morning. On returning home, one of the men died
a few hours later from poisoning. His widow sued the hospital claiming that the doctor was negligent in
not examining her husband. Evidence showed that by the time the husband had called in to the hospital
it was already too late to save his life. This meant that his death was not a result of the doctor’s breach
of duty and so the claim failed.

Foreseeablility

The claimant has to show that the type of damage was reasonably foreseeable.
This is seen in the case of The Wagon Mound (1961) where fuel had negligently spilled onto water in a
harbour. Two days later the oil caught fire because of wielding work being done on another ship. The
fire spread to the claimants wharf and burnt it. The damage suffered was not reasonably foreseeable.

Thin Skull Rule (take your victim as you find him)

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This rule means that the defendant must take his victim as he finds him. So, if the type damage is
reasonably foreseeable, but it is much more serious because of something unusual about the claimant,
such as a thin skull, then the defendant is liable. In this situation the damage is not too remote.

This is shown in the case of Smith v Leech Brain and Co. (1962) where because of a defendants
negligence, a man was burnt on the lip by molten metal. The burn caused him to develop cancer and his
widow claimed against the defendant and because the burn was a foreseeable injury, he was also liable
for the man’s death

The burden of proof in negligence

Generally the burden of proof in civil actions lies with the plaintiff. He has to prove that the defendant
owe him a duty of care, that he breached it and this led into suffering. In certain cases however this isn’t
so such as in the doctrine of Res ipsa loquitur.

Res ipsa loquitur translate to let the facts speak for themselves. It is applicable in situations where
something happens in a way it ought not to have. It is applicable in negligence if;
1. The thing that caused the injury was in control of the defendant or someone over whom the
defendant exercises control
2. The event wouldn’t have happened without negligence
3. There is no way of explaining how it happened.

DEFENCES TO NEGLIGENCE

1. Contributory negligence
This defense is available in circumstances in which the plaintiff is also to blame for the loss or injury. The
defendant must adduce evidence to establish the plaintiff’s contribution.

The defendant must prove:-

1. That the plaintiff exposed himself to danger.
2. That the plaintiff was at fault or negligent.
3. That the plaintiff’s fault or negligence contributed to his suffering.

Effect of contribution
It reduces the amount of damages recoverable by the plaintiff by the extent of his contribution.
However, children of tender years are not guilty of contribution.

2. Voluntary assumption of risk (volenti non fit injuria)

This defense is available in circumstances where the plaintiff with full knowledge of the risk voluntarily
agrees to undertake the same. The defendant must prove
• That the plaintiff had actual knowledge of nature and extent of the risk
• That the plaintiff agreed to incur the risk voluntarily

In Dann v Hamilton the plaintiff had taken a ride on a vehicle driven by a drunken person and his was
aware of this fact and as a consequence an accident occurred. The defendant’s plea of volenti failed
since the plaintiff had not consented to incur the risk.

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However in Tugwell v Bunnet where the defendant‟s vehicle expressly stated that passengers rode at
their own risk and the driver at the material time was drunk to the plaintiff’s knowledge but took a ride
in the motor vehicle and was injured, the defendant’s defense of volenti succeeded since the plaintiff
appreciated the risk and agreed to incur the same.

3. Statutory authority
If the conduct complained of by the plaintiff is authorized by statute and the defendant has acted in
accordance with the provision of the statute the defendant has a complete defense to the plaintiff’s
action.

However whether or not the defense is complete depends on the interpretation of the statute.

NUISANCE
This tort is committed whenever a person is wrongfully disturbed in the use and enjoyment of his land.
Generally, it arises from the duties owed by neighbouring occupiers of land: no

one should use in property in a way which is likely to affect his neighbour’s use of his own land. Thus, if
A and B are neighbours, and A owns plot X while B owns plot Y, A may use plot X in any way he chooses
but he must not in doing so affect B’s of plot Y, or else he will be liable in nuisance.
Although the tort of nuisance is usually committed only where the plaintiff and defendant are owners or
occupiers of land, in certain circumstances the tort may be committed in places like a highway or even a
river. There are two types of nuisance: private nuisance and public nuisance.

Private Nuisance
A private nuisance is committed where a person’s private rights in his land are wrongfully disturbed,
whether physically or by allowing noxious things to escape out of his land. Thus, it is a nuisance to
obstruct an easement or private rights of way; or to allow a weak structure to hang precariously above
the plaintiff’s land, thereby creating a potential source of danger to the plaintiff; or to allow smoke,
noise, gas, fumes e.t.c. to escape onto the plaintiff’s land thereby inconveniencing him e.t.c.
Hollywood Silver Foxes v. Emmett, (1936)
The plaintiff was a breeder of silver foxes, which were very sensitive to any disturbance during breeding
seasons. The defendant was developing the neighbouring land as a housing estate and thought that the
plaintiff’s business might discourage his customers. He instructed his son to fire a gun near the fox
cages. The son did so and after four days the plaintiff sued.
Held: The act of the defendant through his son amounted to a nuisance.

Public Nuisance:
Public nuisance is also known as common nuisance. It affects the comfort and convenience of a class of
persons but not necessarily every member of the public. Thus the obstruction of a highway is a public
nuisance, and also a music festival accompanied by large scale noise. It is also a public nuisance to do
any act which is a source of danger to the public e.g. releasing a large quantity of petrol onto the
highway. In all these cases, it is not the private rights of an individual of the community around or the
public at large.
From what is stated above, it is clear that it would not be reasonable to allow an individual to bring an
action to stop the nuisance. Indeed, a public nuisance is generally a criminal offence and only the
Attorney General may bring an action against the wrongdoer.

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However, in exceptional the person creating such an act of nuisance, if he can prove that he has suffered
some special damage over and above that suffered by the general public.
Soltan v. De Held, (18510
The plaintiff resided next to a Roman Catholic Chapel. the defendant, a priest, took it upon himself to
ring the chapel bell throughout the day and night. The plaintiff brought an action to stop it.

Held: The ringing of the bell was a public nuisance but since the plaintiff’s house was next to the chapel
he suffered more than the rest of the community and was therefore entitled to bring an action to stop
it.

Continuing Wrong:
Generally, nuisance is actionable only when it is a continuing wrong. A disturbance or inconvenience on
an isolated occasion will not ordinarily be treated as a nuisance:
Bolton v. stone, (1951).
The plaintiff, while standing on the highway just outside her home, was injured by a cricket ball struck
from the defendant’s ground which adjoined the highway. The ground had been used for cricket for
over 80 years and it was very rare for balls to be hit over the fence, which was 10 feet high above the
highway and 17 above the pitch. The ball had traveled over 100 yards before hitting the plaintiff.
Held: An isolated act of hitting the cricket ball onto the highway in circumstances like those of this case
could not amount to a nuisance.

It is only in very exceptional circumstances that an isolated act may entail liability in nuisance. an
example of this is afforded by Rylands V. Fletcher where, as we saw above, water escaped only on one
occasion causing damage to the plaintiff’s mine.
The Plaintiff in Nuisance
Since private nuisance generally covers only damage to property to its enjoyment, the plaintiff in an
action brought to remedy a nuisance must show thathe has title to, or at least some interest in the
property which is alleged to have been damaged or whose enjoyment is alleged to have been affected
by the nuisance, Otherwise, the action will not succeed.
Malone V. Laskey, (1907)
A bracket supporting a water tank in a house feel down by reason of vibrations caused by the
defendant’s engine in adjoining premises, and the plaintiff was injured. The plaintiff had no interest in
the premises; she merely resided with her husband, who was manager of the company that had leased
the premises.
Held: The working of the engine was a nuisance, but the plaintiff could not recover anything as she had
no interest in the premises.

The law of nuisance protects only ordinary or normal persons. A plaintiff who is abnormally sensitive,
e.g. because of old age or heart as no special protection and cannot recover in nuisance for which a
normal person would not have suffered. Similarly, a person who has put his premises to a use or trade
which is delicate or sensitive cannot recover in nuisance where it is proved that the suffered would not
have arisen if the premises had been put in ordinary use or trade:
Robinson sources and grounds whereof are stated herein.. Kilvert, (1988).
The plaintiff carried on an exceptionally delicate trade in which he used an equally delicate stock of
paper. This stock of paper was damaged by heat from the defendant’s premises below. The heat was
required for the defendant’s business of paper or manufacture.

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Held: The plaintiff could not recover in nuisance as the damage would not have occurred if he were
carrying on an ordinary trade: and in any case the defendant’s use of his property was reasonable.
The Defendant in Nuisance:
The person liable in nuisance is primarily the occupier of the premises which are the source of the
nuisance, including a tenant; liability does not necessarily fall on the owner of the premises, although he
too may be successfully sued:
Mint V. Good (1951)
A boy of 10 years was walking along a public footpath when collapsed on him and injured him.
The defendant, the owner of the premises from which the wall collapsed, had let the premises in
question to tenants; but the plaintiff sued the defendant himself.
Held: The defendant was liable.

Adopted Nuisance:
Where a nuisance is caused by one person but is adopted by another, the person so adopting it is liable
and cannot plead that the nuisance was not created by him:
Sedleigh-Denfield V O’Callaghan, (1940)
A trespasser placed pipe in a ditch which was on the defendant’s land, without the knowledge or
consent of the defendant. The pipe was meant to carry off rain and all is downwash. When the
defendants became aware of the pipe they used it to drain their own field. Subsequently the pipe
became blocked and the water overflowed onto the plaintiff’s land.
Held: The defendants were liable in nuisance, because they had adopted the trespasser’s act as their
own.

Defences:
i. De Minimis Non Curat Lex (or Triviality);
A person aggrieved by a nuisance can only maintain an action where the damage suffered is so trivial,
minor or negligible that no reasonable person would have cause to complain , no such action may be
maintained; and if sued the defendant may plead ‘de minimis no curat lex’
ii. Reasonable Use of Property:
If the defendant can prove that the nuisance complained of resulted from a reasonable use of his
property, as in Robinson V. Kilvert discussed above, this will to some extent afford him a defence.
But this defence is not available where, as in Hollywood Silver Foxes V. Emmett (see above) the
defendant’s act is proved to have been motivated by malice.
Note: whether the use towhich the property was reasonable in the circumstances is determined from
the standpoint of the victim of the nuisance,because the essence of this tort is that no person ought to
be wrongfully disturbed in the use and enjoyment of his land.

iii. Prescription:
A prescription right to continue a nuisance is acquired after twenty years. Thus, where a nuisance has
been committed on the plaintiff’s land form a continuous period of twenty years, the plaintiff cannot
thereafter maintain an action in respect of the nuisance; and if he does, the defendant may plead
prescription in defence.

iv. Public Benefit:

Public benefit, as a defence to an action brought to remedy a nuisance, has only a limited application.
Private rights must generally be respected. The only exception is where there is statutory authority to
derogate from such rights. But even then there is need to act reasonably and within the statutory limit’

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otherwise the person acting will be liable in nuisance, notwithstanding that his act was intended to
benefit the public. Thus, where an authority had general powers to provide hospitals and it set up a
fever hospital in a heavily populated area, it was held liable to people in the neighbourhood (the
hospital could have conveniently been set up elsewhere): Metropolitan Asylum District V. Hill (1891).
v. General Defence:
Remedies:
i. Abatement:
This remedy is by way of self-help. A person aggrieved by a nuisance is at liberty to abate (or stop) it. But
the act of abatement must be peaceful and, where feasible, after notice to the tortfeasor, otherwise, by
a dramatic turn of events, the aggrieved party might, in attempt to abate nuisance, render himself liable
in nuisance instead!
Chrisstle V. Aveyl (1893)
The plaintiff used to conduct music lessons in his rooms, which was adjacent to the defendant’s.
The defendant, who was annoyed by the disturbance, continuously banged the partitioning wall so as to
disrupt the plaintiff’s music lessons. Held: The plaintiff was entitled to an injunction to restrain the
defendant from interrupting the music lessons.
ii. Injunctions:
This is a remedy which is granted to the plaintiff to restrain the defendant from committing the
nuisance. It is awarded where the nuisance already exists or is impending.
iii. Damages:
By this remedy, the plaintiff is entitled to full compensation in monetary terms, so as to make good the
damages caused by the defendant’s nuisance; as far as money can do it. But the plaintiff can only
recover what was reasonably foreseeable as likely to result from the defendant’s act. In this connection,
regard must be had to the gravity of the nuisance and the extent to which the defendant’s act can be
said to have been unreasonable, or wrongful.

Davey V. Hurrow Corporation, (1958)

The plaintiff’s house was damaged by the penetration of roots which came from trees on the adjoining
land of the defendants. The plaintiff brought an action for damages nuisance.
Held:
TRESPASS

Trespass can be understood in the following three contexts or types;

i. Trespass to land
ii. Trespass to person
iii. Trespass to goods

Trespass isn't simply the unauthorised entry into someone's property without permission, such
definition limits the term to land and chattel. Trespass, specifically, is a negligent or intentional act made
by individual that causes injury to another person or his/her property without lawful justification, no
matter how slight. The use of the term "injury" here means a violation of one's right and not necessarily
actual physical harm or loss.

Generally speaking, trespass possesses four elements. These are the following:

• The fault must be an intentional or negligent act.

• The harm must be of direct interference with the person or property.
• The injury is inflicted on the plaintiff or his or her property.

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• There is no lawful justification

TRESPASS TO LAND

This occurs whenever a person’s (plaintiff) possession in land is wrongfully interfered with. The key thing
here is possession and not necessarily ownership and as such the plaintiff can be the owner or the
tenant. It occurs in three ways;

i. Trespass by wrongful entering on the plaintiff’s land. E.g, encroaching, walking through the land
or putting your hand through their window without their permission
ii. Trespass by remaining on the land, that is, a person who, having been initially authorized to
enter upon land, is later asked to leave it and he fails to do so in reasonable time he is said to trespass
by remaining on the land.
iii. Trespass by placing things on the land. It’s worth noting that this trespass is different from
nuisance in that;
a) The thing place on the land directly affects the plaintiffs procession unlike nuisance which
affects how they enjoy the property
b) Nuisance unlike trespass is concerned with enjoyment and not possession

c) Trespass to land is actionable per se, that is actionable without proof of injury unlike nuisance

Note- each time one repeats a trespass (continuing trespass) the court allows for fresh lawsuit.

Defenses

The main defences to an action for trespass to land are as under:-

i. Prescription
Land acquired by possession is also said to been acquired by prescription .The new owner may plead
title by prescription as a defence to an action brought by previous owner to recover the land. A
defendant may also plead prescription, as by proving aright of common grazing or right of way over the
Plaintiff’s land.

ii. Act of Necessity

The necessity may be pleaded as a defence to an action of trespass to land e.g. entry to put out fire for
public safety

iii. Statutory Authority

Where the authority is conferred by law, whether by statute or by court order, this is also an available
defence e.g. the authority of a court broker

iv. Entry by licence

An entry authorized or licensed by the plaintiff is not actionable in trespass unless the authority or
license given is abused.

Remedies

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The remedies in respect of trespass to land include:

i. Damages
The plaintiff may recover monetary compensation from the defendant,
The extent of which depends on the effect of the dependant’s act on the value of the land in question.

ii. Ejection
We saw earlier on that a person is entitled to use reasonable force to defend his property. Thus, where a
person wrongfully enters or remains on another’s land, he may be ejected using reasonable force may
entail liability for assaults an ejectment may also be based on a court order (an eviction order)

iii. Action for recovery of land

The plaintiff may bring an action to recover his land from the defendant Where there has been a
wrongful dispossession, it is commonfor such action to be coupled with the above two remedies.

iv. Injunction
In addition to the above remedies, an injunction may be obtained to ward off a threatened trespass or
to prevent the continuance of an existing one

v. Distress Damage Feasant

In the case of trespass by placing things on land (or in the case of chattle trespass) the plaintiff
has a right To detain the defendant‘s chattel or animal which is the cause of the trespass in question.

TRESPASS TO THE PERSON

This trespass just like trespass to goods also occurs in three ways;

ASSAULT

This occurs when a person intentionally threatens to use force against another person without lawful
justification hence putting the person in fear. E.g pointing a gun towards him

Rules of the Tort

1. There must be some apprehension of contact
2. There must be a means of carrying out the threat by the defendant
3. The tort is actionable per se.
4. The tort is generally associated with battery
5. Mere words without body movement do not constitute assault.

Assault is constituted by:-

i. A display or show of force
ii. Pointing of a loaded gun
iii. Cursing in a threatening manner

BATTERY
This is the actual use of force towards another person without lawful justification e.g. hitting a person. It
is only actionable if it is voluntary or intentional.

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Intention
Assault is committed where the plaintiff apprehends the commission of a battery on his person.
If the defendant does not intent to commit a battery but induced a belief in the plaintiff‟s mind that he
is about to do so, he is nevertheless liable for assault.
Pointing a loaded gun at a person is of course an assault but if the gun is unloaded it is still assault unless
the person at whom it is pointed knows this.

Apprehension
Suppose the plaintiff is an unusually fearful person in whom the defendant can induce the fear of an
imminent battery though a reasonable man would not have fear in those circumstances, does the
defendant commit assault?

The better view is that the test is based upon the subjective intention of both parties thus there is
battery if the defendant intends to create fear of commission of a battery whether or not he knows the
plaintiff to be a fearful person and the plaintiff actually has this fear.

In Smith vs. Superintendent of Working Police Station (1983), the defendant was convicted of criminal
assault when he entered the grounds of a private house and stood at the window seriously frightening
its occupant who was getting ready for bed.

The plaintiff must however apprehend a battery thus it is not assault to stand still at the door of a room
barring the plaintiff’s entry. It would also not be assault to falsely cry „fire‟ in a crowded place.

Must damages be proved?

Both torts of assault and battery are actionable per se. Where the defendant’s act has caused no
damage the courts may award only nominal damage but the court may also award aggravated damages
because of the injury to the feelings of the plaintiff arising from the circumstances of the commission of
the tort.

Rules of battery

1. Absence of the plaintiff’s consent

2. The act is based on an act of the defendant mere obstruction is not battery
3. A contact caused by an accident over which the defendant has no control is not battery
4. There must be contact with the person of the plaintiff it has been observed the least touching of
another person in anger is battery
5. Battery must be direct and the conduct must follow from the defendant’s act
6. The tort is actionable per se. The essence of battery is to protect a person from unpermitted
contacts with his body. The principal remedy is monetary award in damages.

FALSE IMPRISONMENT

This occurs when a person is deprived of their freedom without legal explanation, e.g locking someone
in a room.
Main ingredients of the tort

(a) Knowledge of the plaintiff

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Knowledge of the restraint is not necessary but may affect the quantum of damages.

In Meeting v. Graham White Aviation Co the plaintiff was being questioned at the defendants company
in connection with certain thefts from the defendants company. He did not know of the presence of two
works police outside the room who would have prevented his leaving if necessary.
Held; the defendant was liable for false imprisonment. Arcing L J said “it appears to me that a person
can be imprisoned without his knowing. I think a person can be imprisoned while he is asleep or in a
state of drunkenness, while unconscious or while he is a lunatic. Of course the damages might be
diminished and would be affected by the question whether he was conscious or not‟

(b) Intention and directness

The tort is defined to exclude negligent imprisonment of another person. The tort must be intentional
and should be committed directly. Where for reason of lack of intention or directness the plaintiff
cannot establish false imprisonment an action in negligence may still be available.

In Sayers v. Badour U.D.C the plaintiff became imprisoned inside the defendant’s toilet because of
negligent maintenance of the door lock by the defendant’s servants. In trying to climb out of the toilet
she fell and was injured. She recovered damages from the defendant because it was a reasonable act on
her part to escape from a situation in which the defendant by his negligence had placed her.
An action for false imprisonment would not have been available because there was no direct act of
imprisonment.

(c) The restraint must be complete

There must be a total restraint placed upon the plaintiff’s freedom of action

In Bird v Jones the defendant closed off the public footpath over one side of a bridge. The plaintiff
wishing to use the footpath was prevented by the defendant. In the plaintiffs action one of the
questions that was necessary to decide was whether the defendant’s act amounted to false
imprisonment.
Held: It did not since the defendant has not placed a total restraint on the plaintiff. The blocking of a
part of a public highway might be a public nuisance for which the plaintiff

could bring an action in tort if he could show special damage arising from. Provided the area of restraint
is total it does not seem to matter that it is very large.

There has been a difference of opinion between the court of appeal and the lower court the
circumstances in which a person already the lawfully imprisoned in a prison may be regarded as falsely
imprisoned.

In R v. Deputy Governor of Prison, there was an agreement that imprisonment under intolerable
conditions would amount to false imprisonment. The Court o f Appeal however required knowledge of
those conditions by the defendant but the lower courts thought that a defense would exist here under
the provisions of the prisons Act.

There is of course false imprisonment where a prisoner is detained beyond the legal date of his release.
(Cowell v. Corrective Services Commissioner)

Rules of the tort

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1. The tort must be intentional
2. It is immaterial that the defendant acted maliciously
3. The restraint or confinement must be total. However, it need not take place in an enclosed
environment
4. It has been observed every confinement of a person is an imprisonment whether it be in a
common prison, private house or in the stocks or even forcibly detaining one in the public
5. The boundary of the area of confinement is fixed by the defendant. The barriers need not be
physical. A restraint affected by the assertion of authority is sufficient.
6. 6. The imprisonment must be direct and the plaintiff need not have been aware of the restraint
7. The tort is actionable per se.
8. The principal remedy is a monetary award in damages.

Defences

i. A parental Authority
A parent has a right to reasonably chastise or discipline his Children. This means that where a parent
beats his child or locks Him up in roomfor sometime by way of reasonable chastisement, he cannot be
sued for battery or false imprisonment .Similarly, if a parent gets a knife and
threatens that he will cut off his child’s mouth unless the child stops abusing grown-ups, no action can
be brought against him for assault When a child is at school all his parent’s right of ordinary control over
him Are delegated to the school authority (or teachers) and are

exercised by the Latter in ‘loco parents ‘.Reasonable chastisement by the school authority.
e.g Reasonable punishment by teachers ,is not actionable in tort
Note: According to R.v (1891) a husband has no right to chastise

ii. Judicial authority:

An act done under order of court is not actionable as trespass. We show at the beginning of this chapter
that acts done in a judicial Capacity are not actionable in tort. It follows that where a judge orders a
corporal punishment of a number of strokes, no action for battery can be brought against him or a
person administering the strokes .Also, statutory authority may be pleaded as a defence

Remedies

i. Damages:
An award of damages iii General Defences the defendant may also rely on the general defences already
considered. Self-defence is a particularly viable defence to assault and battery. Volenti (or the plaintiffs
consent),may also be pleaded Thus, a patient who has consented to a medical operation cannot round
and sue the surgeon for trespass (battery
).Similarly ,a spectator who suffers injury in the cause of a game whose rules are being followed cannot
sue for trespass is the most obvious and usual remedy. The amount of damages awarded depends on
the circumstance of each case, having regard (or in the case The amount of damages awarded depends
on the circumstances of each case, having regard to matters like the injury suffered, the period of false
imprisonment e.t.c.

20 DANIEL GICHUKI
ii. Habeas Corpus:
The Writ of Habeas Corpus is a remedy to false imprisonment. The writ directs the person in show
custody the applicant is detained to produce him before the High Court; the Court may order his release
if it appears that there are not sufficient grounds for detaining him.

PROTECTION OF CHATTELS OR GOODS

Owners of goods are entitled to enjoy their possession and control and their use without any
interference. To protect goods the common law developed 3 torts namely;
• Detinue
• Trespass to goods
• Conversion

DETINUE
This is the unlawful detention of goods. It is the oldest tort relating to the protection of the chattels and
protects possession of goods by the owner. The plaintiff must prove:-
i. Right to immediate possession

ii. That the defendant detained the goods after the plaintiff demanded their return. The plaintiff is
entitled to damages for the detention.

TRESPASS TO GOODS
This is the intentional or negligent interference of goods in possession of the plaintiff. This tort protects
a party interest in goods with regard to retention their physical condition and invariability.

Types/forms of trespass
1. Taking a chattel out of the possession of another
2. Moving a chattel
3. Contact with a chattel
4. Directing a missile to a chattel

Rules/requirements of the tort

1. The trespass must be direct

2. The plaintiff must be in possession of the chattel at the time of interference
3. The tort is actionable per se
4. The principal remedy is a monetary award in damages

The defenses available to this tort include:-

1. Plaintiff’s consent
2. Necessity
3. Mistake

CONVERSION
This is the intentional dealing with goods which is seriously inconsistent to possession or right to
possession of another person. This tort protects a person’s interest in dominion or control of goods.

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The plaintiff must have possession or the right to immediate possession. However, a bailee of goods can
sue 3rd parties in conversion so cans a licensee or a holder of a lien or a finder. Any good or chattel can
be the subject matter of conversion. There must be physical contact resulting in interference with the
goods.

Acts of conversion
i. Taking goods or disposing; it has been observed that to take a chattel out by another’s
possession is to convert it or seize goods under a legal process without justification is conversion.
ii. Destroy or altering
iii. Using a person’s goods without consent is to convert them

iv. Receiving: the voluntary receipt of another’s goods without consent is conversion.

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