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ELCPartially AllowedMombasa/Block XXXVII/29 suit (plaint dated 13th December 2011; Amended Plaint dated 20th April 2017)· [2018] KEELC 1758 (KLR)

Omar Abdalla Omar v Rehema Mohamed Athuman [2018] KEELC 1758 (KLR)

Environment and Land Court
13 June 2018
LKL. KOMINGOIAOA. OMOLLO
806 words in judgment
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The bottom line

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A Mombasa court ordered a landowner to demolish her neighbour's encroaching balcony and canopy, proving boundary disputes can be won with surveyor evidence.

What this practically means

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Executive summary

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By a plaint dated 13th December 2011, amended on 20th April 2017, the Plaintiff (substituted on 6th April 2017 as legal representative and administrator of the Estate of the late Omar Abdalla Omar, the original plaintiff) sued his neighbour over encroachment by the Defendant's building on Plot Number Mombasa/Block XXXVII/27 onto the Plaintiff's Plot Mombasa/Block XXXVII/29/MN. He sought a declaration that the Defendant's balcony and canopy were a nuisance and a violation of his proprietary interest, an order compelling their removal at the Defendant's expense, refilling of a borehole dug on his plot, special damages of Kshs.17,500/=, and costs. The Defendant, served, denied the allegations in a statement of defence dated 23rd January 2012 amounting to mere denials. When the suit came up on 7th December 2017 the Defendant and her Advocate were absent, and the court directed the matter to proceed ex parte. The Plaintiff testified and produced his title, a Chief Building Inspector's report, a County Surveyor's report confirming the encroachment, an architect's report, receipts for Kshs.17,500/=, a demand notice, photographs, and the grant of letters of administration. The court held that the uncontroverted evidence established the encroachment on a balance of probabilities, noting non-compliance with the requirement of a two-metre setback from the boundary, and that the encroachment deprived the Plaintiff of proper use of his land and lessened its value. Judgment was entered for the Plaintiff: a declaration of nuisance and violation of proprietary interest, a mandatory order that the Defendant pull down and remove the balcony and canopy at her expense, special damages of Kshs.17,500/=, and costs of the suit. The borehole-refilling relief was not included in the final orders.

Key legal issues

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01

Whether the Defendant's balcony and canopy encroached on the Plaintiff's plot and constituted nuisance

Holding

Yes - the survey report confirmed the encroachment, and the construction was a nuisance and violation of the Plaintiff's proprietary interest

Reasoning

The County Surveyor's report (exhibit P3) confirmed the balcony and canopy encroached on the Plaintiff's plot. The construction failed to leave the required two-metre space between the building and the boundary, deprived the Plaintiff of proper use of his land, hindered construction of a storey building, and lessened the land's value. The defence amounted to mere denials and was uncontroverted.

p. 2
02

Whether special damages of Kshs.17,500/= were payable

Holding

Yes - special damages of Kshs.17,500/= were awarded, supported by receipts for the survey report (Kshs.10,000/=) and the architect's report (Kshs.7,500/=)

Reasoning

The Plaintiff produced a receipt for the survey report No. 8150710 dated 7th October 2011 for Kshs.10,000/= and receipt No. 021 for Kshs.7,500 dated 5th November 2011, together with the surveyor's and architect's reports, totalling Kshs.17,500/=. The suit being uncontroverted, the court entered judgment for that amount.

p. 2

Legal principles established

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  • A survey report confirming encroachment by a neighbour's structures onto a plaintiff's land establishes nuisance and violation of proprietary interest on a balance of probabilities
  • An uncontroverted plaintiff's case, if supported by evidence, is proved on a balance of probabilities

Court orders

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  1. 1.A declaration that the offending balcony and canopy are a nuisance on the Plaintiff's Plot and a violation of the Plaintiff's proprietary interest
  2. 2.An order compelling the Defendant 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
  3. 3.Special damages of Kshs.17,500/=
  4. 4.Costs of the suit
Jurisdiction invoked
Original civil jurisdiction over land disputes (nuisance and encroachment on land parcel Mombasa/Block XXXVII/29/MN)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omar Abdalla Omar v Rehema Mohamed Athuman [2018] KEELC 1758 (KLR)", Case Analysis (2018). Mombasa/Block XXXVII/29 suit (plaint dated 13th December 2011; Amended Plaint dated 20th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1758/eng@2018-06-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.