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ELCPartially AllowedELC. Misc. Case No. 88 of 2017· [2018] KEELC 3909 (KLR)

Linda Telles v Director of Planning, Compliance and Enforcement & 6 others [2018] KEELC 3909 (KLR)

Environment and Land Court
12 March 2018
7,665 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Applicant, owner of L.R. No. 9104/224 in Gigiri, sought mandamus to compel the Nairobi County Government's Director of Planning to demolish structures erected by the 1st and 2nd Interested Parties on neighbouring plot 9104/226 pursuant to an enforcement note, an order of prohibition against further construction, compensation for damage to her boundary wall and injurious affection, and mandamus against NEMA and the National Construction Authority for allegedly failing in their statutory duties. The court framed seven issues including whether leave under Order 53 was required and whether approvals had been validly obtained. It held that although leave should have been sought, the objection came too late at full hearing. The court found the 1st and 2nd Interested Parties obtained all necessary approvals: the Respondent approved re-siting of the guard house and the amended plans, NEMA's exemption was lawful since single dwelling units are excluded from EIA licensing, and the NCA registered the project and issued a certificate of compliance. The enforcement notice had been complied with. On nuisance, the Applicant failed to prove damages of Kshs. 50 Million or Kshs. 25 Million on a balance of probability, and the court found no unreasonable user, endorsing give and take between neighbours. On storm water, the court adopted the Respondent's recommendation that a 3-meter wayleave run through plots 227, 226 and 228 into the existing wayleave on the Applicant's land toward Rua Ruaka River, and issued mandamus against the 3rd Interested Party, whose consultants' subdivision oversight caused the omission, to facilitate drainage at his cost. Prayers 1, 2, 3, 4, 6 and 7 were declined; only prayer 5 was allowed. Each party bears its own costs.

Key legal issues

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01

Whether the 1st and 2nd Interested Parties obtained the necessary approvals

Holding

They obtained the necessary approvals from the Respondent, NEMA (exemption) and NCA; the development conforms to Zone 13 requirements and the building code

Reasoning

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.

p. 11
02

Whether the Applicant proved private nuisance entitling her to damages

Holding

No; the Applicant failed to prove damages of Kshs. 50 Million or Kshs. 25 Million and failed to show unreasonable user

Reasoning

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.

p. 11
03

How the storm water drainage issue should be resolved

Holding

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

Reasoning

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.

p. 12
04

Whether failure to seek leave under Order 53 was fatal

Holding

The objection, though valid in principle, should have been raised at the onset; the court decided on the merits

Reasoning

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.

p. 8
05

Whether the Land Act provisions on easements applied to create a wayleave by necessity

Holding

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

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 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. 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. 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. 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

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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, "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.