PUBLIC NUISANCE IN UGANDA: A Flexible Tool for Protecting Community interests, or an Overextended Doctrine?

1. Introduction

Public nuisance in Ugandan law as a crime and a tort, as this article will show, is aimed at protection of public rights in a rapidly urbanising and industrialising society, where harms such as environmental pollution, unsafe public infrastructure, and excessive noise, increasingly affect communities collectively rather than individually. Traditional private law mechanisms, which rely on individualised harm, often prove inadequate in addressing such diffuse injuries. The law on public nuisance therefore provides an avenue through which collective harms can be restrained and remedied.

This article argues that while public nuisance remains a vital and flexible mechanism for protection of community interests in Uganda, its doctrinal vagueness and expansive scope risk undermining legal certainty. It outlines the legal framework governing public nuisance in Uganda, examines its role in protecting community interests, analyses its limitations and advances a focused critique that supports a model of structured flexibility.

2. Legal Framework of Public Nuisance in Uganda

The classic formulation in Attorney General v PYA Quarries Ltd[1] by Lord Justice Romer explains, ‘Any nuisance is “public” which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.’ Essentially, it is one, which materially affects the reasonable comfort and convenience of life of a class of the public who come within the sphere or neighbourhood of its operation[2]. This idea remains visible in Ugandan law; the statutory foundation, Section 148 of the Penal Code Act defines common nuisance as any act or omission causing common injury, danger, or inconvenience to the public in the exercise of common rights.”[3] This reflects the core idea that public nuisance is concerned with interference with rights shared collectively, rather than individually.

As mentioned previously, the doctrine retains a dual character. As a criminal offence, it is prosecuted by the State through the Attorney General to vindicate public rights and deter harmful conduct. As a tort, it permits civil remedies where a claimant can demonstrate special damage beyond that suffered by the public[4]. This duality enhances its functional reach, allowing it to operate both as a preventive and compensatory mechanism in addressing conduct that may not fit neatly within private nuisance, negligence, or a purely regulatory framework.

For one to establish public nuisance, courts require proof of unjustified substantial and foreseeable interference with a public right affecting class of persons. As affirmed in Attorney General v Kafero Mambule[5] where it is illustrated that the Attorney General through relator actions brings proceedings of public nuisance for interference of public rights, where a private party informs the Attorney General who then sues, thus distinguishing them from private actions requiring proof of special damages[6]. This reflects the public nature of the wrong and prevents the courts from being flooded with claims over every individual inconvenience, limiting justice to private litigation.

3. Public Nuisance and the Protection of Community Interests

Public nuisance protects collective rights of access and use to public resources thus maintains the orderly functioning of communal life. It ensures that public spaces such as highways, waterways, and markets remain open, safe and undisturbed by private interference. It is immaterial that the act or omission complained of is convenient to a larger number of the public than it inconveniences[7]. Those who contribute to conditions unsafe to the public have an ongoing obligation to address those conditions[8]. The actor owes reasonable steps toward mitigating the risk and failure to do so, resulting in public injury, could rightly be redressed through damages[9].In Tindarwesire v Kabale Town Council[10], the defendant was held to be liable for public nuisance for negligently leaving an excavation in a market place near a commonly used path without even notifying the common-path users. The case illustrates how the doctrine operates to ensure that public spaces remain safe and accessible to all. However, it is essential that the interest being interfered with is one recognised by law as held in Hunter and Others v Canary Wharf[11]. The interference should also be blameless of the complainants as upheld under the ‘volenti fit injuria’ principle in Erima Nantongo v Hiram Mohammad[12]. The doctrine preserves the functionality of shared resources and upholds the public’s ability to move freely and safely.

Public nuisance is also central to the protection of public health and environmental interests. The Constitution guarantees the right to a clean and healthy environment[13] to every Ugandan. In Mukwasi General Contractors Ltd v Living Words Assembly Ltd[14], the High Court restrained excessive noise emanating from a church, recognising its detrimental impact on both individuals and the wider community, as a violation of the constitutional right to a clean and healthy environment and infringement of the National Environment (Noise Standards and Control) Regulations[15]. Similarly, in Asiimwe & Others v Leaf Tobacco & Commodities Ltd[16] court held that harmful environmental conduct[17]could itself ground a nuisance claim and the public did not have to wait for establishment of formal regulatory standards before seeking relief. This reflects an important preventive dimension of public by compelling compliance with safety standards.

The availability of both criminal sanctions and civil remedies further strengthens the doctrine’s protective function. Criminal liability serves as a deterrent against conduct that threatens public welfare, while civil actions provide compensation and injunctive relief to affected individuals. In this sense, public nuisance operates as a flexible, gap-filling tool capable of addressing a wide range of collective harms that might otherwise evade effective legal control.

4. Limitations, Doctrinal Risks, and the Case for Structured Flexibility

Notwithstanding its utility, public nuisance is frequently criticised for its conceptual indeterminacy. Scholars have long described it as covering a “multitude of sins, great and small”[18] a characterisation that captures both its strength and its principal weakness. While its breadth enables responsiveness to novel harms, it also risks undermining legal certainty.

A central difficulty lies in the indeterminate content of “public rights.” The concept remains inherently open-textured, leaving considerable scope for judicial interpretation. While this flexibility allows the doctrine to adapt to new forms of harm, the absence of a clear and consistent definition permits courts to characterise a wide range of social harms as nuisances, perhaps a range too-wide. This blurs the boundary between adjudication and policy-making. As Leslie Kendrick[19] argues, the doctrine’s elasticity risks transforming it into a vehicle through which courts regulate public risks without the institutional safeguards typically associated with legislative or administrative action. However, she rightly observes that, with demands that public nuisance be entirely statutory, we may be seeking to impose modern concepts onto legal forms that look different from what we expect[20].

In addition, public nuisance enforcement often depends on state initiative, particularly in its criminal dimension and yet not all such activities spawn public-nuisance suits[21]. Resource constraints such as shortage of funds may therefore result in under-enforcement, especially in areas such as environmental protection and public safety where collective harms are most acute.

These limitations do not negate the value of public nuisance but rather, they highlight the need for structured flexibility. Ugandan courts should retain the doctrine’s adaptability while articulating clearer guiding principles because such an approach would preserve the doctrine’s responsiveness while enhancing legal certainty.

Therefore, public nuisance remains a vital component of Ugandan law, offering a flexible and responsive mechanism for protecting community interests. However, this flexibility must be balanced against the demands of legal certainty. The doctrine’s open-textured nature risks inconsistent application and potential overreach if left unchecked. By embracing a model of structured flexibility, public nuisance can continue to function as an effective safeguard of collective interests while maintaining the coherence and predictability essential to the rule of law.

REFERENCE(S): LIST

Statutes and Constitutional Instruments

1. The Constitution of the Republic of Uganda, 1995
2. The National Environment (Noise Standards and Control) Regulations, 2003
3. The Penal Code Act, Cap. 128 (Uganda)

Case Law

1. Asiimwe & Others v Leaf Tobacco & Commodities Ltd, Miscellaneous Cause No. 43 of 2013
2. Attorney General v Kafero Mambule, Civil Appeal No. 25 of 1959
3. Attorney General v PYA Quarries Ltd, 2 QB 169
4. Benjamin v Storr (1874) LR 9 CP 400
5. Erima Nantongo & Anor v Hiral Mohammad [1974] HCB 181
6. Hunter and Others v Canary Wharf [1997] 2 WLR 684
7. Lyons, Sons & Co v Gulliver [1914] 1 Ch 631
8. Mukwasi General Contractors v Living Words Assembly Limited & 2 Ors, (Civil Suit No. 230 of 2013) [2018]
9. News Group Newspapers Ltd v SOGAT ‘82 (No.2)  C.R. 181
10. Tindarwesire v Kabale Town Council [1980] HCB 33

Books and Journals

1. Goudkamp, James and Donal Nolan. Winfield and Jolowicz on Tort. 20th ed. Sweet & Maxwell, 2020
2. Kendrick, Leslie. “The Perils and Promise of Public Nuisance.” The Yale Law Journal 132 (2023)
3. Merrill, Thomas W. “Public Nuisance as Risk Regulation.” Columbia Law School (2022)

[1] Attorney General v PYA Quarries Ltd, [1957] 2 QB 169

[2] James Goudkamp and Donal Nolan, Winfield and Jolowicz on Tort (20th edn, Sweet & Maxwell 2020).

[3] The Penal Code Act (PCA), Cap. 128.(Uganda)

[4] Benjamin v Storr (1874) LR 9 CP 400.

[5] Attorney Gneral v Kafero Mambule, Civil Appeal No. 25 of 1959

[6] Lyons, Sons & Co v Gulliver [1914] 1 Ch 631.

[7] PCA, s 148(2)

[8] Leslie Kendrick, ‘The Perils and Promise of Public Nuisance’ (2023) 132, The Yale Law Journal.

[9] ibid

[10] Tindarwesire v Kabale Town Council [1980] HCB 33

[11] Hunter and Others v Canary Wharf [1997] 2 WLR 684

[12] Erima Nantongo & Anor v Hiral Mohammad [1974] HCB 181.

[13] The Constitution of the Republic of Uganda, Article 39

[14] Mukwasi General Contractors v Living Words Assembly Limited & 2 Ors (Civil Suit NO. 230 OF 2013) [2018] UGHCCD 102 (12 December 2018)

[15] The National Environment (Noise Standards And Control) Regulations, 2003. (Under sections 28 and 107 of the National Environment Act Cap 153)

[16] Asiimwe & Others v Leaf Tobacco & Commodities Ltd Miscellaneous Cause No. 43 of 2013

[17] PCA, s. 159 and 160

[18]James Goudkamp and Donal Nolan, Winfield and Jolowicz on Tort (20th edn, Sweet & Maxwell 2020).

[19] Leslie Kendrick, ‘The Perils and Promise of Public Nuisance’ (2023) 132, The Yale Law Journal.

[20] ibid

[21] Thomas W Merrill, ‘Public Nuisance as Risk Regulation’ (2022) Columbia Law School