Injunction-an application for injunction against the Defendants from operating their business on land number LR 336/8/Baba Dogo Estate/Nairobi until they stopped the flow of waste liquid, chemicals and noxious smell to the Plaintiffs land LR number 336/1059/Baba Dogo Estate Nairobi-where the parties in the dispute owned adjoining properties- the Plaintiffs had constructed a block of 33 flats for residential use in 1989-the defendants later constructed a factory on the same plot and started manufacturing footwear- claim by the plaintiffs that the defendants had constantly caused offensive waste liquid and chemicals to flow and pestilential gases, smells and vapors to come into and be on the Plaintiffs' premises causing a nuisance-whether an injunction could be issued

Nuisance - public health - nuisance – claim by the plaintiffs that the defendants had constantly caused noxious and offensive gases, smells and vapors to come into the Plaintiffs' premises causing a nuisance- failure to comply with the public health regulations-where the defendants contended that the location of their factory premises was specifically designated for light industrial use and not for residential use and that the City Council of Nairobi had granted planning permission for the construction of the factory-whether the principle of volenti non fit injuria applied -whether the Defendants’ were guilty of nuisance- Public Health Act (cap 242)

Negligence-alleged negligence on the part of the Defendants who had failed to construct pipes, mains or other apparatus to keep the gases and effluent and ensure that they would not escape from the factory -plaintiffs claim that as a result of the nuisance and negligence of the Defendants, their property had been rendered unhealthy and uncomfortable to live in, and their families and tenants had suffered great discomfort, inconvenience, disturbance and health risks – whether the Defendants’  had been negligent and their factory operations had caused offensive gases, smells and vapors to be emitted into the Plaintiffs' property and was the cause of the damage to the roof and walls

Damages –special and general damages- claim for damages for cost of repairs done to the building, which comprised the replacement of the galvanized iron sheet roof - lost rent arising from inability to rent out the ground floor rooms as a result of the contamination by effluent – where the defendants averred that it had in place a reasonable, proper and safe infrastructure for purposes of ensuring a safe and environmentally friendly waste disposal system- whether, given that the state of evidence adduced in the case, the defendants could be held liable for the damage to the roof of the Plaintiffs' block of flats and for the loss there by suffered by the Plaintiffs

Damages-Burden of proof-claim by the defendants that taking into account that there were other industries in the area it would have been hard to determine whether the corrosion of the iron sheets on the roof of the Plaintiffs' flats was as result of the gaseous emissions from the Defendants' factory-whether it was enough for the plaintiff to show that the defendant materially increased the risk of harm from a known source-whether a prima facie case against the defendant had been made on a balance of probabilities- where the defendant had not adduced evidence of his innocence – trite law that if each of several persons, not acting in concert, commits a tort against another person substantially contemporaneously and causing the same or indivisible damage, each several tort feasor is liable for the whole damage-whether the defendants were liable for damages

 Environmental Tribunal-jurisdiction- power of the tribunal to make a final determination of the issues in dispute between the parties, subject to the right of the parties to appeal to the High Court -  sections 108, 126(2), 130 and 132 of the Environmental Management and Coordination Act, 1999 (EMCA)

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