Wainaina Kigathi Mungai v Trade Pan Reality Limited & 2 others [2018] KEELC 4330 (KLR)
The bottom line
#A landowner suing neighbours for nuisance in Kenya must back every claim with solid evidence, or the case fails.
What this practically means
#Executive summary
#Key legal issues
#Proof of want of building approvals
The Plaintiff failed to discharge the burden of proving absence of approval; the Defendants produced approved plans confirmed by a County officer
The Plaintiff bore the evidential burden under Sections 107 and 109 of the Evidence Act. His letters from the City Council were produced without a maker and no Council official testified for him. The Defendants, through DW2 of Nairobi City County, produced approved plans and Town Planning Committee minutes confirming approval on 9th August 1989. The court found the Defendants indeed had approvals in 1996 and 2011.
Nuisance by the 1st and 2nd Defendants in 1996
Not proved; the allegations of destroying the cypress fence, diverting River Ruaka and keeping animals were unsupported by any tangible evidence
The Plaintiff produced no photographs, police reports, charges or expert evidence of the destruction of the fence or the diversion of the river, and no evidence from the Public Health Department about goats and turkeys. Unsubstantiated allegations cannot found a finding of nuisance.
Nuisance and infringement of privacy and natural light by the 3rd Defendant's buildings
Not proved; the 3rd Defendant is absolute proprietor under Sections 24(a) and 25(1) of the Land Registration Act, carried out only approved renovations, and a mature cypress fence plus 12-metre distance preserve privacy and light
The 3rd Defendant acquired the property for value and became absolute owner with rights appurtenant. He carried out only renovations and built a swimming pool with approvals. The court observed the mature cypress fence separating the compounds and the Plaintiff's admission that the houses are about 12 metres apart, which suffices for privacy and natural light.
Flooding in May/June 2011
Not proved; no evidence of flooding or expert attribution to the 3rd Defendant, and any flooding was attributable to the long rains
The Plaintiff produced no photographs, expert or NEMA reports establishing that flooding occurred or that the 3rd Defendant's kitchen gardening or sprinkler system caused it. The court took judicial notice that May/June are months of long rains, so any flooding was a natural occurrence rather than the Defendant's doing.
Counter-claim of the 1st and 2nd Defendants
Disallowed because no evidence was adduced in support
Though the Defence and Counter-claim sought general damages for defamation, nuisance and trespass and an injunction, the 2nd Defendant did not allude to or give evidence on the Counter-claim at trial, so the court found the 1st and 2nd Defendants not entitled to it.
Legal principles established
#- He who alleges must prove; the burden lies on the party asserting the facts under Sections 107 and 109 of the Evidence Act
- Registration as proprietor vests absolute ownership and indefeasible rights under the Land Registration Act
- Costs follow the event and are ordinarily granted to the successful litigant
Court orders
#- 1.The Plaintiff's claim in the Amended Plaint dated 22nd May 2012 is dismissed with costs to the Defendants
- 2.The 1st and 2nd Defendants' Counter-claim is disallowed entirely
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (nuisance and trespass to land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wainaina Kigathi Mungai v Trade Pan Reality Limited & 2 others [2018] KEELC 4330 (KLR)", Case Analysis (2018). ELC Civil Suit 2755 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4330/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.