Githui v Public Health Officer [2005] KEHC 10 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Criminal Appeal 141 of 1996

The appellant GG Githui is aggrieved by an order which was made on 6th

June 1996 by the then Senior Resident Magistrate Nanyuki ordering the

appellant to demolish structures on Plot No TOL “B” which was alleged

to constitute a nuisance and to further issue an order to the tenants of the

premises to vacate the premises within 14 days.

The orders were issued pursuant to an ex-parte chamber summons stated

to be brought under section 142 as read with section 115 and 118 of the

Public Health Act cap 242. The court only heard one FG Wanjohi a Public

Health Officer who claimed to have inspected the premises owned by the

appellant and found that they constitute a nuisance.

Section 119 and 120 of the Public Health Act provides the procedure to

be followed by the Medical Officer of Health in order to deal with a

nuisance. First a notice should be served on the author of the nuisance or

if he cannot be found on the occupier or owner of the dwelling or on the

on premises on which the nuisance arises to remove the nuisance within a

specified time.

Secondly where the person on whom the notice is served fails to comply

with the notice, the Medical Officer shall cause a complaint to be registered

before a magistrate.

Thirdly the magistrate shall issue a summons requiring the person on

whom the notice was served to appear before his court.

Fourthly the court if satisfied that the alleged nuisance exist shall make

an order requiring the person on whom the notice was served to comply

with the notice.

In this case none of the above mandatory requirements provided in section

119 and 120 of the Public Health Act were complied with. No notice was

served on the appellant. No formal complaint was lodged before the

magistrate nor did the magistrate summon the appellant to appear before

him. Instead a peculiar procedure was adopted through an ex-parte

chamber summons with the result that the appellant was condemned

without being given any hearing.

Clearly the trial magistrate erred in failing to comply with the mandatory

legal provisions and also in acting contrary to the rules of natural justice.

Accordingly I allow the appeal and set aside the orders of the trial

magistrate made on 6th June 1996.