Nuisance is a common tort law concept that deals with interference with the use and enjoyment

of land. There are two types of nuisance:

a. Public Nuisance: Public nuisance occurs when a person's actions interfere with the
reasonable use and enjoyment of land by the public. The hospital may argue that the noise and
smoke from the factory constitute a public nuisance since it is affecting not only the hospital but
also the neighboring boarding school and homes.

b. Private Nuisance: Private nuisance occurs when a person's actions substantially and
unreasonably interfere with the use and enjoyment of another individual's land. The hospital
may claim that the noise and smoke from the factory are unreasonably interfering with its
operations and causing harm to its patients.

To succeed in a legal action for nuisance as a tort, the hospital would need to establish the
following elements:

a) Unreasonable interference: The hospital must demonstrate that the interference caused by
the factory's operations is unreasonable. This involves considering factors such as the nature
and extent of the interference, the sensitivity of the affected property, and the surrounding
circumstances.

Sturges v Bridgman (1879): In this case, a doctor's consulting room was located next to a
confectioner's shop. The confectioner installed new machinery that caused vibrations and noise,
which interfered with the doctor's ability to examine patients. The court held that the doctor was
entitled to an injunction because the interference was unreasonable, even though the
confectioner had been operating his business for many years without any complaints.

b) Substantial interference: The interference must be substantial in nature, meaning it must go

beyond mere inconvenience or annoyance. The hospital would need to show that the noise and
smoke emitted by the factory significantly affect their ability to provide healthcare services and
maintain a healthy environment.

Sedleigh-Denfield v O'Callaghan (1940): In this case, water was accumulating on a highway due
to a blocked culvert owned by the defendant. The accumulation of water caused a nuisance and
created a danger for road users. The court held that the interference was substantial, even
though the water accumulation was intermittent, as it posed a real risk to public safety.

c) Causation: The hospital must establish a causal link between the factory's operations and the
interference suffered. They need to show that the noise and smoke are directly attributable to
the factory and not due to other factors.

Cambridge Water Co. v Eastern Counties Leather Plc (1994): In this case, a chemical
company's activities led to the contamination of a water source, which affected the water supply
of the plaintiff, a water company. The court held that the chemical company was liable for the
nuisance because there was a direct causal link between their activities and the contamination
of the water source, resulting in harm to the plaintiff.

d) Legal interest in the affected property: The hospital must have a legal interest or right to the
use and enjoyment of the property affected by the nuisance. As a public hospital, they can
argue that their role in providing healthcare services to the community gives them a legal
interest in maintaining a peaceful and conducive environment.

In this case, Mathari hospital is seeking to stop the nuisance caused by Patel's steel
manufacturing plant. Nuisance, in legal terms, refers to an unreasonable interference with the
use and enjoyment of one's property, typically caused by another party's actions. To determine
whether the law supports the hospital's position, we need to assess whether the factory's
operations constitute a legally recognized nuisance.

Under Kenyan law, the Environmental Management and Coordination Act (EMCA) addresses
the regulation and control of environmental nuisances. Section 107 of the EMCA states that
anyone who causes or permits an environmental nuisance shall be liable for the abatement of
that nuisance.

In this case, the noise and smoke emitted by the steel manufacturing plant may be considered
as environmental nuisances under the EMCA. The hospital can argue that the factory's
operations are unreasonably interfering with their ability to provide mental healthcare services to
their patients and maintain a conducive healing environment.

To further support their case, the hospital can gather evidence such as documented complaints
from patients and staff, noise level measurements, and expert opinions on the health impacts of
the factory's emissions. This evidence would strengthen their argument that the nuisance is
indeed causing harm and is unreasonable.

How the element of sensitivity impacts the action in private nuisance in this case. (5
Marks)

Sensitivity refers to the degree of vulnerability or susceptibility of a particular land use or activity
to the interference or disturbances caused by neighboring activities.
In the given scenario, the element of sensitivity plays a crucial role in assessing the impact of
the private nuisance caused by Patel's steel manufacturing plant on the Mathari hospital and
surrounding residential areas.

Mathari hospital is known for offering mental healthcare, which implies that the patients within
the hospital and their families may be more sensitive to external disturbances due to their
condition. Similarly, the neighboring residential areas are likely to be inhabited by individuals
and families who seek a peaceful and quiet environment for rest and living.

The action in private nuisance is influenced by the concept of sensitivity because it helps
determine the reasonableness of the interference caused by Patel's factory. Generally, a person
is expected to use their property in a manner that does not unreasonably interfere with the use
and enjoyment of neighboring properties. However, the level of tolerance for interference may
vary depending on the sensitivity of the affected properties.

In this case, the hospital and residential areas have a higher sensitivity due to the nature of their
activities and the need for a quiet environment. The increased noise and smoke pollution from
the factory, particularly during nighttime operations, significantly disrupt the peaceful
atmosphere required for the patients' recovery and the residents' well-being.

The lack of consultation with the hospital and neighboring properties during the approval
process further exacerbates the issue. The objection raised by the hospital and residents,
highlighting the negative impact on their operations and quality of life, should be considered in
assessing the reasonableness of the interference caused by the factory.

In the case of Sturges v. Bridgman (1879) It held that if a person carries out an activity that
would not be a nuisance in an industrial area but causes a nuisance in a residential area, they
can be held liable.

Ultimately, the element of sensitivity emphasizes the need to balance the economic benefits of
the factory with the rights and well-being of the affected parties.