[2018] KEELC 4439 (KLR)
The court found that the Plaintiff failed to provide sufficient evidence to establish that the Defendant's building encroached onto her property or that the Defendant's agents threw rubbish onto her land. The Defendant had obtained all necessary approvals for his construction, and the Plaintiff's photographic...
Source-derived case information.
- Citation
- [2018] KEELC 4439 (KLR)
- Parties
- Plaintiff: Irene Katumbu Kimanthi; Defendant: Philip Mwania; Respondent: National Environment Management Authority; Respondent: National Construction Authority; Respondent: Kitui County Government
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 109 of 2016
- Procedural Posture
- Interlocutory Application / Ruling on Interim Injunction Application
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Injunctive Relief, Land Encroachment, Building Regulations, Nuisance, Quiet Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irene Katumbu Kimanthi
Plaintiff
Philip Mwania
Defendant
National Environment Management Authority
Respondent
National Construction Authority
Respondent
Kitui County Government
Respondent
Procedural Posture
Interlocutory Application / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the Defendant has encroached on the Plaintiff's land by constructing a building that crosses the boundary.
- 2 Whether the Defendant or his agents have thrown rubbish onto the Plaintiff's property.
- 3 Whether the Plaintiff is entitled to interim injunctive relief restraining the Defendant from alleged acts pending determination of the suit.
Ratio Decidendi
The court found that the Plaintiff failed to provide sufficient evidence to establish that the Defendant's building encroached onto her property or that the Defendant's agents threw rubbish onto her land. The Defendant had obtained all necessary approvals for his construction, and the Plaintiff's photographic evidence was inconclusive. Given that the Defendant's building was fully developed and occupied, and in the absence of clear evidence of encroachment or nuisance, the court held that it would be premature to grant the injunctive relief sought or to order demolition before hearing viva voce evidence. The balance of convenience favored the Defendant, and the Plaintiff's application for...
Court Disposition
application dismissed
Orders
- The Application dated 9th September, 2016 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 109 OF 2016
IRENE KATUMBU KIMANTHI......................................................PLAINTIFF
VERSUS
PHILIP MWANIA...........................................................................DEFENDANT
AND
NATIONAL ENVIRONMENT
MANAGEMENT AUTHORITY..............................1ST INTERESTED PARTY
NATIONAL CONSTRUCTION AUTHORITY.....2ND INTERESTED PARTY
KITUI COUNTY GOVERNMENT.........................3RD INTERESTED PARTY
RULING
1. In the Application dated 9th September, 2016, the Plaintiff is seeking for the following reliefs:
a. That pending the inter-partes hearing and determination of this suit, the Defendant his agents, tenants, servants, occupants of Kitui Municipality Zone 83 Plot No. 6 and/or in any manner howsoever be restrained from throwing rubbish and/or causing rubbish to fall on the Plaintiff’s Kitui Municipality Zone 83 Plot No. 5, her house and/or compound.
b. That pending the inter-partes hearing and determination of this suit, the Defendant his agents, tenants, servants, occupants of Kitui Municipality Zone 83 Plot No. 6 and/or in any manner howsoever be restrained from allowing any part of the Flat, building, roof, windows and/or any part of the building on the Defendant’s Kitui Municipality Zone 83 Plot No. 6 from encroaching onto and or trespassing, overhanging and/or remaining on Plaintiff’s Kitui Municipality Zone 83 Plot No. 5 and/or interfering with the Plaintiff’s legal and equitable interests and rights of quiet possession, occupation and enjoyment of her plot.
c. That the costs of this Application be paid by the Defendant/Respondent.
2. The Application is supported by the Affidavit of the Plaintiff. According to the Plaintiff, he is the registered and legal owner of land known as Kitui Municipality Zone 83 Plot No. 5 and that the Defendant owns a parcel of land known as Kitui Municipality Zone 83 Plot No. 6.
3. According to the Plaintiff, his plot and the Defendant’s plot are next to each other and both of them front the common access road; that he has developed his plot by building a house while the Defendant has built on his plot a dwelling three storeyed flat.
4. The Plaintiff’s complaint is that the Defendant has constructed his flat directly on and crossed the boundary wall onto his plot; that the Defendant’s balcony has also encroached on his plot and that the construction of the Defendant’s flat has infringed on his privacy and in breach of his legal rights, the building code, the NEMA guidelines and regulations and the Kitui County Government and NCA guidelines and regulations.
5. In response, the Defendant deponed that before he commenced construction, he had drawings of the building approved by the relevant county officers; that his building is clearly demarcated and reflected into the Area-map and that it is not true that his tenants and agents throw rubbish onto the Plaintiff’s plot.
6. The Defendant stated that neither his balconies, roof or gutters overhang on the Plaintiff’s plot.
7. The Parties filed brief submissions which I have considered. I have also considered the authorities.
8. It is not in dispute that the Plaintiff is the legal owner of parcel number Kitui Municipality Zone 83 Plot No. 5 while the Defendant is the legal owner of Plot No. 6.
9. Although the Plaintiff has alleged that the Defendant has breached the building code, the NEMA guidelines and regulations and the NCA guidelines by building a Flat which has encroached on his plot, the Defendant has deponed that his Flat is within the confines of his plot.
10. The Defendant has attached on his Affidavit the duly approved building plans of the impugned Flat.
11. From the photographs annexed on the Plaintiff’s Affidavit, it is difficulty, to establish if indeed the Defendant’s building has encroached on the Plaintiff’s plot.
12. Indeed, in view of the approvals that were granted to the Defendant to put up the said building, it would be pre-mature for this court to order for the demolition of the said building before the court receives viva voce evidence to establish the Plaintiff’s allegations.
13. Considering that the Defendant’s Flat is fully developed, and the same is occupied, I find that the balance of convenience tilts in favour of the Defendant.
14. Although the Plaintiff alleged that the Defendant’s agents have been throwing rubbish on his plot, there is no evidence before this court to prove that allegation.
15. In the circumstances, and for the reasons I have given above, I dismiss the Application dated 9th September, 2016 with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF FEBRUARY, 2018.
O.A. ANGOTE
JUDGE