[2018] KEELC 1758 (KLR)

[2018] KEELC 1758 (KLR)

The court found that the Plaintiff had established, on a balance of probabilities, that the Defendant's construction of a balcony and canopy encroached onto the Plaintiff's land, constituting a nuisance and violating his proprietary interests. The Plaintiff's evidence, including survey and architectural reports, was...

Source-derived case information.

Citation
[2018] KEELC 1758 (KLR)
Parties
Plaintiff: Omar Abdalla Omar (substituted by Mohammed Abdalla); Defendant: Rehema Mohamed Athuman
Court
Environment and Land Court
Court Station
Environment and Land Court at Mombasa
Jurisdiction
Kenya
Case Number
Environment & Land Case 636 of 2011
Procedural Posture
Environment Land Case / Judgment
Outcome
judgment_for_plaintiff
Judges
LC Komingoi, AA Omollo
Legal Topics
Land Encroachment, Nuisance, Boundary Disputes, Proprietary Interest
Source Language
en
Land and Property Tort Law Land Encroachment Nuisance Boundary Disputes Proprietary Interest

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Summary, issues, holding and outcome

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Parties

Omar Abdalla Omar (substituted by Mohammed Abdalla)

Plaintiff

Rehema Mohamed Athuman

Defendant

Procedural Posture

Environment Land Case / Judgment

Legal Issues

  1. 1 Whether the Defendant's construction of a balcony and canopy encroached on the Plaintiff's land and constituted a nuisance.
  2. 2 Whether the Plaintiff is entitled to special damages and removal of the encroaching structures.
  3. 3 Whether the Defendant's actions violated physical planning requirements and the Plaintiff's proprietary interests.

Ratio Decidendi

The court found that the Plaintiff had established, on a balance of probabilities, that the Defendant's construction of a balcony and canopy encroached onto the Plaintiff's land, constituting a nuisance and violating his proprietary interests. The Plaintiff's evidence, including survey and architectural reports, was uncontroverted due to the Defendant's absence and lack of substantive defence. The court held that the Defendant's actions deprived the Plaintiff of proper use of his land, diminished its value, and failed to comply with physical planning requirements mandating a two-metre setback from the boundary. Consequently, the court granted declaratory and injunctive relief, ordered...

Court Disposition

judgment_for_plaintiff

Orders

  • A declaration is issued that the offending balcony and canopy are a nuisance and a violation of the Plaintiff's proprietary interest.
  • The Defendant is ordered to forthwith pull down and/or remove at her expense the offending balcony and canopy on her building under construction on Plot Number Mombasa/Block XXXVII/27/MI.