PARKLANDS LAW CAMPUS

SCHOOL OF LAW

BACHELOR OF LAWS (LLB)

UNIT NAME: THE LAW OF TORTS

UNIT CODE: BLW 1201

LECTURER: MR. CHARLES MWONGELA

GROUP FIVE (5) MEMBERS

Admission Number Name Signature Marks

1 BLAW/2024/33641
2 BLAW/2024/32757
3 BLAW/2024/33819
4 BLAW/2024/33131
5 BLAW/2024/31136
6 BLAW/2024/32921
7 BLAW/2024/37974
ANNASTASIA M MAKUNU
MESHACK MWAKISAGU
DAVID E. KORIANG
FREDRICK O. OOKO
GENEVIEVE SOMEH
SHADRACH MUSYOKI
BERNARD KIMONDO

GROUP ASSIGNMENT QUESTION

“… We understand this to be the true rule of law. That if a man accumulates in his land for
his own purpose unnatural thing, which is likely to cause harm if it escapes, and causes
mischief to another, he is prima facie liable…”

Explain the genre of tort disclosed by this passage, its key ingredients, remedies and defences.
Use both English law and Kenyan precedents to buttress your answer.
INTRODUCTION

A tort is a civil wrong other than a breach of contract1 whose remedy is a common law action.
This therefore means that the law of tort is not codified and hence, not derived from statute. It
seeks to protect various personal and proprietary interests through the allocation of responsibility
for losses, which are bound to occur in society.

In Tort, the duty is fixed by law, owed to people generally and the primary aim is compensation
and as such a claimant must have suffered actual harm. The remedies are monetary compensation
(damages) and may include other reliefs like an injunction to prevent the occurrence of harm in
the future.

Torts are classified as Torts of Negligence, Intentional Torts and Strict Liability Torts.

Torts of negligence will arise when the reasonable level of care expected of a prudent person has
not been observed whereas intentional torts are wrongful acts and or omissions a person
commits intentionally, being fully aware that such commission or omission will occasion harm or
injury to another person.

However, strict liability torts as will be discussed in detail in this paper refer to situations that
are abnormally dangerous and have nothing to do with negligence or intention. It occurs when
anyone who during non–natural use of his land, accumulates thereon for his own purposes
anything likely to do mischief and if it escapes is answerable for all direct damage thereby
caused.

Strict liability draws its authority from the rule in Rylands v. Fletcher case where although the
defendant was neither negligent nor vicariously liable in the tort of his independent contractor, he
was held liable by the Court of Exchequer Chamber and the House of Lords.
In this case, John Rylands had a reservoir constructed on his land by independent contractors.
During the construction, the contractors discovered some old coal shafts and filled them with

1
Mount Kenya University Law of Torts Notes (2024) complied by Charles Mwongela

1
debris. However, they failed to properly seal these shafts. When the reservoir was filled with
water, the water broke through the shafts and flooded Fletcher's coal mines on the adjoining
property. The court held that Rylands was liable for the damages caused by the escape of water.

As it will be discussed in detail in this paper, to satisfy this rule and to prove a prima facie case,
the following elements must be sufficiently proved; Thing, accumulation, non- natural user of
land, escape and damage.

KEY INGREDIENTS OF THE TORT OF STRICT LIABILITY (THE RULE IN

RYLANDS V FLETCHER)

The rule of Rylands v Fletcher set out certain specific requirements that must be met for a claim
in strict liability. The court must be satisfied with these requirements for the plaintiff to succeed
in the suit. These requirements include;

I. The Thing
II. Accumulation
III. Unnatural Use of Land
IV. Escape
V. Damage

I. The Thing

The first basic requirement for the applicability in the laid down rule of Rylands vs Fletcher is
the presence of a thing. The thing need not to be dangerous since harmless objects may also
cause injury upon escape from the defendant’s land. The thing here include explosives,
electricity, water, gas, poisonous trees, fire, oil, petroleum products among others.2

In the case of Musgrove vs Pandelis (1919), where the defendant owned a car, which he kept in
a garage. The car had a defective fuel system that was prone to leaking petrol. One day, a fire
2
Legal Service India - https://www.legalserviceindia.com/legal/article-8016-case-analysis-rylands-v-s-fletcher.html

2
started in the garage due to the leaking petrol, causing significant damage to the plaintiff's
property.

The court held that the defendant was strictly liable under the rule in Rylands v Fletcher since he
brought a thing onto the land. The thing here was a car with a defective fuel system.3

In A.G. vs Corke (1933), where Corke allowed a group of gypsies (caravan-dwellers) to camp on
his land. These gypsies trespassed onto neighboring properties and caused damage. The legal
issue was whether Corke could be held strictly liable under the rule in Rylands v Fletcher for the
actions of the gypsies who caused damage to neighboring properties.4

The court held that Corke was liable since he brought gypsies to stay on his land. The court
considered that the presence of the gypsies was likely to result in harm or mischief to the
plaintiff’s properties. This case has however received disapproval owing to the fact that ‘things’
do not include human beings.

II. Accumulation

Accumulation involves the gradual gathering of a thing on the defendant’s property for his own
benefit. For example, gathering water in a reservoir, gathering explosives in a warehouse, and
storing chemicals.5

Temporary occupiers of land such as lessees, fall within the accumulation rule and are legally
liable for damage if a thing they had brought into their land escapes into the plaintiff’s land.

In the case of Charing Cross Electricity Supply Co. v Hydraulic Power Co. (1914), the
defendant was responsible for maintaining a network of water mains used to supply hydraulic
power. One of these mains burst, causing flooding that damaged an electricity substation owned
by the Charing Cross Electricity Supply Company, leading to a loss of electricity supply to their
customers.

3
https://preciouscaseapp.com/case.html?title=musgrove-v-pandelis-1919-2-kb-43-3566
4
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=7183&context=penn_law_review
5
http://homepage.eircom.net/~ucdtutorials/Rylands_v_Fletcher.pdf

3
The court held the Hydraulic Power Company liable since the presence of water under pressure
in the mains was likely to cause significant damage if it escaped.

In some circumstances, the defendant does not have to benefit from a thing he brought onto his
land as was held in the case of Smeaton v Ilford Corporation (1954) where the plaintiff's
property was damaged by flooding caused by the defendant's sewer system. The sewer system
had become inadequate to handle the increased volume of sewage due to population growth and
urban development, leading to frequent overflows and flooding of Mr. Smeaton's property. The
court held that a local authority which was under a statutory duty to collect the sewage, collected
it for its own purposes within the rule in Rylands v Fletcher.

The defendant will, however, not be liable for a thing that is naturally present e.g., the escape of
weeds and rocks. The accumulation must be voluntary.

III. The Non-Natural Use of Land6

Initial interpretation of ‘non-natural use’: Blackburn J said that the rule applied only to a
thing ‘which was not naturally there. In the House of Lords, Lord Cairns used more ambiguous
words which have since been construed as meaning that the defendant is only answerable if, in
bringing on to his land, he is making a ‘non-natural use of the land. The expression ‘non-natural
use’ is very flexible and the courts are afforded a great deal of latitude in construing whether the
defendant has engaged in a ‘non-natural use’. The form in which Lord Moulton, on behalf of the
Privy Council expressed this rule in Rickards v Lothian emphasised this flexibility. He said: “it
must be some special use bringing with it increased danger to others, and must not merely be the
ordinary use of the land or such a use as is proper for the general benefit of the community”.
Viscount Simon in Read v J Lyons & Co Ltd thought this statement to be ‘of the first
importance, and Lord Porter said:

“… each seems to be a question of fact subject to a ruling of the judge as to whether… the
particular use can be non-natural, and in deciding this question, I think that all the

6
Christian Witting, Street on Torts (14th edn, OUP 2015).

4
circumstances of the time and place and practice of mankind must be taken into consideration so
that what might be regarded as … non-natural may vary according to those circumstances”.

The current interpretation of ‘non-natural use’: The current tendency is to interpret

‘non-natural use’ narrowly, and earlier cases might no longer be followed. For instance, in Read
v J Lyons & Co. Ltd, despite the contrary previous decision of the House of Lords in Rainharm
Chemical Works Ltd v Belvedere Fish Guano Co., it was doubted whether building and running
a munitions factory on land in wartime was a non-natural use. Similarly, despite the words of
Lord Moulton in Rickards v Lothian concerning uses that bring a ‘general benefit to the
community’, Lord Goff emphatically denied the fact that the generation of employment for a
local community was sufficient to transform the storage of chemicals used in the tanning
industry into a natural use of the land. He stated that he was not:

“…able to accept that the creation of employment as such, even in a small industrial complex, is
sufficient of itself to establish a particular use as constituting a natural or ordinary use of land”.

Beyond this, his Lordship offered little to clarify the meaning of the term ‘non-natural use’.
Instead of taking the opportunity to do so in Cambridge Water, he declined to say more than that
he did not consider it necessary to redefine the phrase in that context since ‘storage of chemicals
on industrial premises should be regarded as an almost classic case of non-natural use.

It thus fell to the House of Lords in Transco v Stockport MBC to clarify this troublesome phrase.
There in holding that the supply of pressurised water to 66 flats constituted a non-natural use of
land so that there could be no liability for the effects of a burst pipe-Lord Bingham offered the
following thoughts.

“I think it is clear that ordinary user is a preferable test to natural user, making it clear that the
rule in Rylands v Fletcher is engaged only where the defendant’s use is shown to be
extra-ordinary and unusual. This is not a test to be inflexibly applied: a use may be
extraordinary and unusual at one time or in one place but not so at another time or in another
place … The question is whether the defendant has done something out of the ordinary in the
place and at the time when he does it. In answering that question, I respectfully think that little

5
help is gained (and unnecessary confusion perhaps caused) by considering whether the use is
proper for the general benefit of the community”.

By contrast, in the very same case, Lord Hoffman was of the view that a test based on ordinary
user was rather vague and preferred a test based on increased risk. And, confusingly, various
other members of the House of Lords agreed with both analyses of the problem without
indicating a preference for either one. That being so, despite the effort to clear up the meaning of
non-natural use, a crepuscular haze continues to overhang its definition, with the courts
nowadays preferring to use the concept of reasonable use instead.

Illustration of natural use of land: Growing trees planted by the defendant, so long as they are
not poisonous; lighting a fire in the fireplace of a house; using a hot wire cutter in proximity to a
flammable material; storing large quantities of tyres on an industrial estate; storing metal foil in a
factory; installing necessary wiring for electric lighting; water pipe installations in buildings;
supplying gas to flats in a tower block; working mines and minerals on land and building or
pulling down walls.

Non-natural uses of land: By contrast, the following activities have been held at one time or
another to constitute non–natural uses of land: storing water, gas, electricity, and the like in
abnormal or excessive quantities; the storage of ignitable materials in a barn; and the use of a
blowlamp to thaw pipes in a loft. But it is difficult to resist the conclusion that the current notion
of a ‘non-natural use’ is both narrow and becoming narrower as technology develops and further
commercial uses of land become accepted, so as to greatly restrict the scope of the rule in
Rylands v Fletcher.

In Kenya: Kenya Ports Authority v East African Power & Lighting Company Ltd7

Summary of the Plaintiff's Case

On March 9, 1982, Law JA delivered a judgment regarding an appeal from a suit filed in the
High Court at Mombasa by Kenya Ports Authority against East African Power and Lighting Co
Ltd. The plaintiff sought damages of Kshs 33,628.45 for cleaning up an oil leak in the harbor,
allegedly caused by the defendant's negligence.
7
https://leap.unep.org/sites/default/files/court-case/Kenya%2520Ports%2520Auth.pdf

6
Key Points of the Plaintiff's Case:

1. Background:

- The defendant operated a power station on the plaintiff's land under a license.

- The plaintiff claimed the defendant was responsible for maintaining oil pipes to prevent leaks
and pollution.

2. Incident:

- Between December 4 and 7, 1977, oil leaked from a broken supply pipe, polluting the
Shimanzi Creek.

- The plaintiff conducted clean-up operations to avoid combustion and claimed resultant loss
and damage.

3. Defendant's Response:

- The defendant denied the allegations and argued that the suit was misconceived and that the
losses were not legally recoverable.

- A preliminary objection was raised, asserting that the plaintiff disclosed no cause of action.

4. Court Findings:

- The High Court judge found no actual damage to the plaintiff's property, as the sea water in
the harbor was not the plaintiff's property.

- The plaintiff’s claims for negligence and strict liability under Rylands v Fletcher failed.

5. Appeal:

- The plaintiff appealed, asserting a proprietary interest in the harbor water and claiming
damages for pollution under negligence and strict liability.

7
 - The plaintiff argued that using oil for electricity was a non-natural use of land, making the
defendant liable for any escape of oil.

6. Defendant's Counter:

- The defendant maintained that no actual physical damage to the plaintiff's property occurred,
and economic losses from preventive measures were not recoverable.

- Sea water is considered "res nullius" and cannot be owned.

7. Appeal Court Decision:

- The Court of Appeal upheld the High Court's decision, agreeing that no actual damage to the
plaintiff's property was proven.

- The cross-appeal by the defendant succeeded, affirming that storing oil for electricity
generation was not a non-natural use of land.

8. Additional Matters:

- An application to amend the plaint to include a breach of statutory duty was denied.

The appeal was dismissed, and the cross-appeal was allowed, with costs awarded to the
respondent.

IV. Escape8

Defendant’s occupation or control. According to the orthodox view, an explosion which injures a
claimant within the factory where the explosion occurs is outside the rule since there must be an
‘escape from a place where the defendant has occupation of or control over, land to a place
which is outside his occupation or control. By contrast, where something escapes from one place
of entertainment in a fairground to a stall tenanted by another fairground operative (but still
within the fairground), there is, apparently, a sufficient escape.

8
Christian Witting, Street on Torts (14th edn, OUP 2015).

8
In Midwood & Co. Ltd v Manchester Corpn, an explosion in a cable belonging to, and laid by,
the defendant in the highway caused inflammable gas to escape into the claimant's nearby house
and set fire to its contents. There was held to be a sufficient escape to fall within the rule in
Rylands v Fletcher. Then, in Charing Cross Electric Supply Co v Hydraulic Power Co, the
Court of Appeal, relying on the Midwood case, held that there was a sufficient escape when
water from a main, laid cable which was near to it and under the same highway.

In Read v Lyons & Co Ltd, the House of Lords did not overrule these cases, but simply pointed
out that there was, in each of them, an escape onto the property over which the defendant had no
control, from a container which the defendant had a licence to put in the highway. On the other
hand, the proposition that the rule also extends to cases where the defendant has no such licence
in respect of public thoroughfare is thought to be wrong.

What must escape: The traditional assumption has been that the actual harm wrought by the
escape need not be immediately caused by the thing accumulated. So for example, it was held in
Kennard v Cory Bros & Co that, where parts of a coal slag heap escaped and their pressure on a
third party’s quarry spoil caused that spoil to damage the claimant’s land, the escape
requirements of the rule in Rylands v Fletcher was satisfied. However, in Gore v Stannard
(trading as Wyvern Tyres), considered earlier, the Court of Appeal held that there was no liability
on the part of a tyre seller in storing a large number of tyres on his premises, which subsequently
caught fire. There was no escape of any tyres from the premises, and the escape of the fire was
held to be insufficient. It is respectfully submitted that the decision, although correct was not
supportable on this particular basis.

Kenya Case Laws

1. David M. Ndetei v Orbit Chemical Industries Limited [2014] eKLR9

Court: High Court of Kenya at Meru

Plaintiff's Claims:

9
David M. Ndetei v Orbit Chemical Industries Limited [2014] eKLR:
https://kenyalaw.org/caselaw/cases/view/99244/

9
1. Nuisance: The Plaintiff accused the Defendant of causing or continuing to cause nuisance by
odors, noise, dirt, industrial dust, sewage, or percolation of effluents onto the Plaintiff's property
(L.R No. 1504/13).

2. Negligence: The Plaintiff alleged that the Defendant was negligent in the construction and
operation of their plant, which resulted in the escape of untreated sewage and contaminated
water, leading to offensive odors and health hazards.

3. Loss and Damage: The Plaintiff claimed loss of agricultural productivity, loss of animals, cost
of consultations, and cost of materials for land restoration, totaling over Kshs. 267 million.

Defendant's defence:

1. Compliance: The Defendant argued that they did not produce any solid or liquid effluents, as
all waste was either recycled or sold, and the sanitary waste was disposed of in a properly
constructed septic tank.

2. Counter-Claim: The Defendant accused the Plaintiff of making false and malicious
misrepresentations, causing economic loss and delays in obtaining their operation license. They
sought an injunction against the Plaintiff and general damages.

Issues for Determination:

1. Validity of the Plaint: The Defendant argued that the Plaint was not signed according to
procedural rules, but the court found no prejudice to the Defendant and proceeded to determine
the matter on its merits.

2. Negligence and Strict Liability: The court considered whether the Defendant's activities
amounted to a non-natural use of land under the rule in Rylands v. Fletcher, which imposes strict
liability for damage caused by the escape of hazardous substances.

10
Court Findings:

1. Non-Natural Use of Land: The court determined that the Defendant's industrial activities,
including the use and production of various chemicals, constituted a non-natural use of land.

2. Escape of Pollutants: Evidence showed that the Defendant's processes resulted in the escape of
untreated sewage, contaminated storm water, and other pollutants onto the Plaintiff's property.

3. Damage to Plaintiff's Property: The court found that the pollutants from the Defendant's
factory caused significant damage to the Plaintiff's soil, water, and agricultural activities,
including the death of livestock and plants.

Damages Awarded:

1. Special Damages: The court agreed that special damages must be specifically pleaded and
proved, but did not provide the final amount awarded due to incomplete information.

Held:

The court held the Defendant liable for the nuisance and damage caused to the Plaintiff's
property due to the escape of pollutants from their industrial processes. The Defendant was
ordered to compensate the Plaintiff for the proven damages and to take measures to restore the
environment according to the polluter-pays principle.

2. Kenya Power & Lighting Co. Ltd v Joseph Makamu [2010] eKLR

Background:

● The plaintiff claimed that electricity from Kenya Power & Lighting Company (KPLC)
caused a fire, damaging his property.
● KPLC argued that the fire was due to an external factor beyond their control.

Court’s Analysis and Findings:

The court referenced Rylands v Fletcher, considering electricity as a potentially dangerous thing.

11
The court determined that the electricity supply was a non-natural use of land and its escape
caused damage to the plaintiff’s property.

KPLC was held strictly liable despite their argument of external factors.

Outcome:

The plaintiff was awarded damages for the loss suffered due to the fire.

3. Nairobi Golf Hotels (Kenya) Ltd v Pelican Engineering & Construction Co. Ltd [2001]
eKLR

Background:

● The plaintiff operated a hotel and golf course near a construction site managed by the
defendant.
● The defendant’s construction activities included the use of dynamite, which caused
vibrations and damage to the plaintiff’s property.

Court’s Analysis and Findings:

● The court applied the Rylands v Fletcher rule, finding that the use of dynamite was a
non-natural use of land.
● The vibrations from the dynamite constituted an escape, causing damage to the plaintiff’s
property.
● The defendant was held strictly liable for the damages.

Outcome:

The court awarded damages to the plaintiff for the destruction caused by the defendant’s
activities.

12
 V. Damage/Foreseeability of Harm10

Since the important decision in the Cambridge Water case, it is clear that foreseeability of harm
is required if a claimant is to succeed in an action based on the rule in Rylands v Fletcher. The
facts in that case were as follows.

Solvents which had been used by defendants in their tannery for many years had a history of
being spilt onto the floor of the defendant's factory. From there, they seeped into a natural
groundwater source drawn upon by the claimant in order to fulfill its statutory duty to supply
drinking water to the inhabitants of Cambridge. The seepage caused the water to become
contaminated to the extent that it was unwholesome according to European Community
standards. No one had supposed that this contamination would take place, mainly because of the
volatility of the solvents which it had been thought had simply evaporated from Defendants
factory floor.

A Unanimous House of Lords held the defendants not liable on the basis of the unforeseeability
of the harm caused to the claimant’s water supply. Lord Goff, who delivered the leading speech,
stated that ‘foreseeability of damage of the relevant type should be regarded as a prerequisite of
liability in damages under the rule’. What his Lordship failed to make clear, however, is whether
damage had to be foreseeable (1) in terms of the kind of harm alone or (2) in terms of both an
escape occurring and harm being thereby caused. However, since then, it has been made clear
that it is the former that is required. As Lord Bingham put it in the Transco case:

“…It must be shown that the defendant has done something which he recognised or judged by
the standards appropriate at the relevant place and time, he ought reasonably to have
recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be
an escape, however unlikely an escape may have been thought to be”.

DEFENCES TO THE RULE IN RYLANDS V. FLETCHER

10
Christian Witting, Street on Torts (14th edn, OUP 2015).

13
Defences that can be used to challenge liability under the Rule in Rylands v Fletcher include;
Acts of God, Consent or Agreement by the Plaintiff, Plaintiff’s Own Fault or Contributory
Negligence, Statutory Authority and Third-Party Acts.

I. Acts of God 11

Acts of God refer to natural events that are unforeseeable and uncontrollable, such as
earthquakes, floods etc. Where escape is caused directly by natural causes without human
intervention in “circumstances which no human foresight can provide against and of which
human prudence is not bound to recognise possibility…” the defence of act of God applies and
the occupier is thus not liable.

In Greenock Corp v Caledonia (1917),12 the court said that to rely on the defence of an 'act of
god', that act of god must be beyond all foreseeability i.e. circumstances in which no human
foresight can provide against and of which human prudence is not bound to recognise the
possibility. The case mentions the flood was one of extraordinary violence, but floods of
extraordinary violence must be anticipated as events that are likely to take place from time to
time.

II. Plaintiffs Consent13

If the plaintiff has consented to the presence or accumulation of the thing, he/she cannot sue
should the escape of the thing occur. The consent can be either implied or express. In Kiddle v
City Business Properties Ltd, the plaintiff became a tenant of the defendant in a house below the
house occupied by the defendant (Landlord). The gutter of the Landlord’s house was blocked and
when it rained, an overflow of rainwater from the blocked gutter at the bottom of the sloping roof
in possession of the Landlord and above the tenant’s premises damaged the stock in the tenant’s
premises. It was held that the Landlord had a defence as the tenant impliedly consented to the
risk of rainwater overflowing into his premises.

11
Mount Kenya University Law of Torts Notes (2024) complied by Charles Mwongela
12
Digestible Notes Website: https://digestiblenotes.com/law/tort_cases/rylands.php#greenock accessed on7th July
2024

13
Mount Kenya University Law of Torts Notes (2024) complied by Charles Mwongela

14
If the accumulation benefits both the plaintiff and the defendant, the plaintiff may be deemed to
have consented to its accumulation e.g. where for the benefit of several occupants’ rainwater is
accumulated on the roof or a water closet installed or water pipes fitted, the several occupants are
deemed to have consented. On the other hand, the defence is not available between a commercial
supplier of gas in respect of gas mains under the highway. In any event an occupier will not be
presumed to have consented to installations being left in a dangerously unsafe state.

III. Plaintiff’s Own Fault14

Where the damage is as a result of the plaintiff’s own actions, or where there is contributory
negligence, the plaintiff has no remedy. As an example, if a person knows that there is danger of
his mine being flooded by his neighbour's operations on adjacent lands and courts the danger by
doing some act which renders the flooding probable, he cannot complain. In Miles v Forest Rock
Granite Co. Ltd. (1918), there was liability when explosives were stored on the defendant’s land
and led to the escape of rocks in a blast. But more recently, the Court of Appeal in Stannard (t/a
Wyvern Tyres) v Gore (2012) held that Rylands v Fletcher did not apply when flammable tyres
were stored in large quantities on the defendant’s land and then ignited, causing a fire which
spread to neighbouring premises.

In Dunn v. Birmingham Canal & Co, where the plaintiff worked a mine under the canal of the
defendant and had good reason to know that they would thereby cause the water from the canal
to escape into this mine, it was held that they could not sue under strict liability tort when the
water escaped and damaged their mine. Cockburn C. J. said; “The plaintiff saw the danger, and
may be said to have courted it.”

IV. Statutory Authority 15

Statutory authority is applicable where the activity causing the accumulation is authorised by
statute. Sometimes, public bodies storing water, gas, electricity, and the like are by statute
exempted from liability so long as they have taken reasonable care. It is a question of statutory

14
Mount Kenya University Law of Torts Notes (2024) complied by Charles Mwongela
15
Ibid 14

15
interpretation whether, and, if so, to what extent liability under Rylands v Fletcher has been
excluded.

In Green v Chelsea Waterworks Co (1894) 70 LT 547, a water main burst causing damage to the
claimant’s land. Chelsea Waterworks Co. were under a statutory obligation to maintain high
pressure in the water main. This would mean that any escape would inevitably cause damage.
They were not liable under Rylands v Fletcher as they had the defence of statutory authority.

On the other hand, In Charing Cross Electricity Co v Hydraulic Power Co. where the facts were
similar, the defendants were held liable. The defendant had no exemption upon the interpretation
of their statute. The distinction between the cases that the Hydraulic Power Company Co were
empowered by statute to supply water for industrial purposes, that is, they had permissive power
but not a mandatory authority, and they were under no obligation to keep their mains charged
with water at high pressure, or at all. The question whether the rule in Rylands v. Fletcher
applies in all its strictness to local authorities has been considered but not decided.

Statutory Authority in Kenya: Environmental Management and Coordination Act

(EMCA)

Key Provisions:

● Section 3: Recognizes the right to a clean and healthy environment and the duty to
safeguard and enhance it.
● Section 58: Mandates Environmental Impact Assessments (EIAs) for activities likely to
impact the environment.
● Section 108: Provides for environmental restoration orders to prevent further damage.
● Section 111: Allows for compensation and restoration costs to be borne by the polluter
under the polluter-pays principle.

Example of Application of EMCA:

1. Albert Mumma v Kenya Ports Authority [2016] eKLR

Background:

16
 ● The plaintiff filed a suit against Kenya Ports Authority (KPA) for discharging untreated
sewage and pollutants into the ocean, affecting his land and causing health hazards.

Court’s Analysis and Findings:

● The court referenced EMCA, highlighting KPA’s obligations to prevent pollution.

● The principle of strict liability under the Rylands v Fletcher rule was applied, holding
KPA responsible for the escape of pollutants.

Outcome:

● The court issued restoration orders and awarded damages to the plaintiff for the
environmental degradation and personal loss suffered.

Conclusion:

Strict liability, under the Rylands v Fletcher rule, is a significant legal principle in Kenya,
holding parties accountable for non-natural uses of land that result in damage to others. The
principle is reinforced by statutory provisions in EMCA, ensuring environmental protection and
the right to compensation for affected parties. The case law in Kenya reflects the judiciary’s
commitment to upholding strict liability and environmental justice.

V. Acts of a Third Party 16

In cases where the escape and resulting damage were caused by the deliberate act of an
independent third party, the defendant might avoid liability by proving that they had no control
or influence over the third party's actions. To rely on this defence, the defendant should establish
that the intervention of the third party was not foreseeable; and that the third-party actions were
the direct and sole cause of the escape and subsequent damage. However, if the defendant was
aware of the third party's activities but failed to take appropriate measures to prevent the escape,
the act of a third party defence may not be applicable.

Where the occupier of land accumulates things on his land, the rule will not apply if the escape
of the thing is caused by the unforeseeable act of a stranger. In Rickards v. Lothian the plaintiff
16
Mount Kenya University Law of Torts Notes (2024) complied by Charles Mwongela

17
failed in his claim against the defendant where a third party had deliberately blocked the waste
pipe of a lavatory basin in the defendant premises, thereby, flooding the plaintiff’s premises. The
basis of the defence is the absence of any nature of control by the defendant over the acts of a
stranger on his land and thus the burden is on him to show that the escape was due to the
unforeseen act of a stranger without any negligence on his own part.

REMEDIES

The remedies under the rule in Rylands v Fletcher are primarily aimed at compensating the
claimant for the harm caused.

The main remedy is the award of damages In this instance, the claimant is entitled to
compensation for the actual loss and damage suffered as a result of the escape. Such damages
include the cost of repairing or replacing damaged property, any economic losses suffered, and
compensation for personal injury or emotional distress in some cases.

The court may also grant injunctive relief. This is where the court orders the defendant to stop or
prevent the continuation of the non-natural use of the land, or to take specific actions to prevent
further escapes and potential harm to others. The purpose of injunctive relief is to ensure that
similar incidents do not occur in the future.

CONCLUSION
The Court of Exchequer, in the rule of Rylands v Fletcher cut out a cloth fit for the victims to
seek remedies in court where actions of owners of land who bring things into their land
occasioning harm to them upon escape. This rule holds the owners of land liable even where
there is no willfulness or negligence on them or on their independent contractors.

In the absence of this rule, the victims would otherwise have no recourse in the torts of
negligence and intentional torts whose defences of acting with due care and independent
contractors cushioned them from liability. A duty under strict liability was therefore imposed
on the duty bearer to bridge the existing gap, which was prevailing in the common law principles
of torts.

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BIBLIOGRAPHY/REFERENCES

1. Christian Witting, Street on Torts (14th edn, OUP 2015).

2. ‘Hein Online Law Journal Library - University login required off-campus.’ [Online].
Available:
https://portal.roehampton.ac.uk/information/library/Pages/a-z-online-databases.aspx#h
3. David M. Ndetei v Orbit Chemical Industries Limited [2014] eKLR:
https://kenyalaw.org/caselaw/cases/view/99244/

4. Kenya Ports Authority v East African Power & Lighting Company Ltd:
https://leap.unep.org/sites/default/files/court-case/Kenya%2520Ports%2520Auth.pdf
5. Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited (Petition 11 of
2015) [2018] KESC 48 (KLR) (27 April 2018) (Judgment):
http://kenyalaw.org/caselaw/cases/view/151754
6. Mount Kenya University Law of Torts Notes (2024) complied by Charles Mwongela
7. Digestible Notes Website:
https://digestiblenotes.com/law/tort_cases/rylands.php#greenock accessed on7th July
2024
8. Studocu website:
https://www.studocu.com/en-gb/document/middlesex-university-london/law-of-tort/tort-o
f-escape-case-law-term-ordinary-and-natural/13365846
9. E-Law Resources Website:
https://e-lawresources.co.uk/cases/Green-v-Chelsea-Waterworks.php accessed on 7th July
2024
10. Studysmarter website
https://www.studysmarter.co.uk/explanations/law/civil-law/rule-in-rylands-v-fletcher/#:~:
text=Act%20of%20a%20third%20party&text=To%20rely%20on%20this%20defence,the
%20escape%20and%20subsequent%20damage. Accessed on 7th July 2024

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