Municipal Council Of Nairobi V Haji & Another  EKLR
|Civil Case 109 & 113 of 1943 (Consolidated)||15 Jul 1944|
Lucie Smith J
Supreme Court of Kenya
Municipal Council of Nairobi v Haji & another
Municipal Council of Nairobi v Haji & another  eKLR
Civil Cases Nos 109 of 1943 & 113 of 1943 (consolidated)
Nuisance - public health - right of a local authority to abate a nuisance -
whether the right is dependent on the conviction of the owner or occupier
of the land on which the nuisance exists - Malaria Prevention Ordinance,
1929 section 8 - Public Health Ordinance, 1921 sections 121, 126 - Civil
Procedure Rules, 1927 order XIII rule 6.
Two cases were stated for the opinion of the Supreme Court under o XIII
r 6 of the Civil Procedure Rules, in which the following facts were set
The defendants were the joint owners of plot No 4 of section VII (Land
Reference No 36) situate on Juja Road, Eastleigh, within the area in which
the plaintiffs were the Local Authority within the meaning of the Malaria
Prevention Ordinance, 1929. The defendants made or permitted to be made
a quarry on this land and in consequence thereof excavations were also
made. All such operations were legal and within the defendants’ legitimate
rights. On or about the 17th July, 1940, the plaintiffs served the following
notice on the defendants:-
“Notice is hereby given under and by virtue of the
provisions of section 8 of the Malaria Prevention
Ordinance whereby you are required within 30 days
from the date of service of this Notice, to drain and/or
properly and adequately fill in all excavations, holes,
hollows, or low-lying land on plot No.4, Section VII
Eastleigh (of which you are the owners) to the
satisfaction of the Local Authority, for the purpose of
preventing or suppressing the existence or propagation
of mosquitoes therein or thereupon.
And Notice is hereby further given that if within the
period of time above specified you have not complied
with the requirements of this Notice, the Local Authority
will enter upon the said plot and execute such works as
they may be required thereon for the purpose aforesaid
and charge with the cost of such works.”
The defendants without admitting the existence or otherwise of the alleged
acts or omissions set out in the notice did not comply with it.
The plaintiffs did not attempt to prosecute the defendants for failing to
comply with the notice but on or about 10th September 1940, entered
upon defendants’ land and abated the nuisance caused by the excavations.
Subsequently the plaintiffs claimed the cost of the work performed on the
On these facts the following questions were submitted to the Court for
(1) Are any, and if so what, of the powers and provisions of the Public
Health Ordinance abrogated, repealed or superseded by the Malaria
(2) Is section 8 of the Malaria Prevention Ordinance to be construed as if
it were incorporated in and formed part of the Public Health Ordinance?
(3) If the answer to No (2) is the negative, is section 8 of the Malaria
Prevention Ordinance to be construed as being unfettered in its
application without regard to the general provisions in the Public Health
Ordinance relating to nuisances?
(4) If the answer to No (3) is in the affirmative or otherwise, is it obligatory
upon the plaintiffs to give the defendants an opportunity of defending
themselves by instituting proceedings in Court and obtaining a decision
from the Court that that the defendants had been guilty of a contravention
of the Malaria Prevention Ordinance before the plaintiffs themselves
were entitled to enter upon the premises and do work thereon?
1. That section 8 of the Malaria Prevention Ordinance is to be construed
independently of the provisions of the Public Health Ordinance.
2. That the right of a local authority to abate a nuisance under the Malaria
Prevention Ordinance is not dependent on the conviction of the owner
or occupier of the land on which the nuisance exists.
1. Sunlife Assurance Company of Canada v Jervis  2 All ER 425;
 AC 111
2. Corporation of Yarmouth v Simmons (1879) 10 Ch D 518
3. Pirbhai, Jamal and others v Municipal Council of Nairobi Civil Case
No 156 of 1940
1. Public Health Ordinance (cap 124) sections 119; 120; 121; 136 (a), (b),
2. Malaria Prevention Ordinance, 1929 sections 8, 13, 14
3. Civil Procedure Rules (cap 21 Sub Leg) order XIII rule 6
Kaplan for the Plaintiffs.
Shapley and Trivedi for the Defendants.