The respondent had been licenced by the appellant to operate a power station inside the port of Mombasa on the appellant’s land. Following a leakage from the pipes serving the power station, the waters of the port were contaminated with oil. The appellant sued the respondent for damages incurred in cleaning up the harbour which, as pleaded in the plaint, had been done to avoid the combustion of the oil.

The court held that the pollution damaged the port waters and not the property of the appellant. Indeed, the court considered the port waters to be res nullius, which means that they do not belong to anyone, and therefore the appellant did not have any standing to sue.