Linda Telles v Director of Planning, Compliance and Enforcement & 6 others [2018] KEELC 3909 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 1st and 2nd Interested Parties obtained the necessary approvals
They obtained the necessary approvals from the Respondent, NEMA (exemption) and NCA; the development conforms to Zone 13 requirements and the building code
The Respondent's own report confirmed the plot size, typology and siting complied with zoning and building code requirements. The guard house was re-sited and amended plans approved on 31/5/2016, satisfying enforcement notice 5658. NCA registered the project and issued a certificate of compliance. The court found no legal requirement for an EIA for a single dwelling house.
Whether the Applicant proved private nuisance entitling her to damages
No; the Applicant failed to prove damages of Kshs. 50 Million or Kshs. 25 Million and failed to show unreasonable user
The onus lay on the Applicant. She did not prove the claimed losses on a balance of probability. The 1st and 2nd Interested Parties are entitled to develop and enjoy their property under Article 40 of the Constitution and Section 25 of the Land Registration Act, and their user was not so unreasonable as to unduly interfere with the Applicant's enjoyment of her land.
How the storm water drainage issue should be resolved
A 3-meter-wide wayleave should run from L.R. No. 9104/227 along plot 9104/226 into the 3rd Interested Party's plot 9104/228 and into the existing wayleave on the Applicant's land; mandamus issued against the 3rd Interested Party at his costs
The subdivision of L.R. No. 9104/225 by the 3rd Interested Party's consultants omitted provision for drainage, leaving plots 226 and 227 landlocked for storm water. Since the omission was his oversight, the 3rd Interested Party must facilitate drainage and bear the costs of the works.
Whether failure to seek leave under Order 53 was fatal
The objection, though valid in principle, should have been raised at the onset; the court decided on the merits
The 1st, 2nd, 4th and 5th Interested Parties argued the application was defective for want of leave under Order 53. The court agreed with the position but held the objection was raised too late, the matter having proceeded to full hearing, and was inclined to decide the merits.
Whether the Land Act provisions on easements applied to create a wayleave by necessity
Part X of the Land Act (commencing 2nd May 2012) did not apply to the 1st and 2nd Interested Parties' circumstances; no registered easement existed
The 1st and 2nd Interested Parties argued an easement of necessity had arisen. The court noted Section 98 of the Land Registration Act prescribes how easements are created by instrument, and no such instrument existed. Section 137 of the Land Act limits Part X to easements made or coming into force on or after 2nd May 2012.
Legal principles established
#- An order of mandamus can only issue where the respondent has a legal duty which it has failed to fulfil, and cannot compel performance of a duty not mandated by law
- Landowners must be considerate of their neighbours' interests; there must be give and take in the use of neighbouring land
- Private nuisance requires unreasonable user of land unduly interfering with a neighbour's use or enjoyment of land
Court orders
#- 1.An order of mandamus issued against the 3rd Interested Party to compel him to facilitate the drainage of the storm water from the 1st and 2nd Interested Parties' land through his plot to be channeled to Rua Ruaka River through the wayleave on the Applicant's land
- 2.The costs of providing for the drainage of the storm water from plot numbers 9104/226 and 9104/227 to be borne by the 3rd Interested Party
- 3.Prayers 1, 2, 3, 4, 6 and 7 of the Amended Notice of Motion dated 26/7/2017 declined; only prayer number 5 allowed
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Articles 40 and 42 of the Constitution on the protection of the right to property and the right to a clean and healthy environment; enforcement notice under the Physical Planning Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Linda Telles v Director of Planning, Compliance and Enforcement & 6 others [2018] KEELC 3909 (KLR)", Case Analysis (2018). ELC. Misc. Case No. 88 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3909/eng@2018-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.