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Case Brief · caselaw.co.ke
ELCDismissedELC Civil Suit 2755 of 1996· [2018] KEELC 4330 (KLR)

Wainaina Kigathi Mungai v Trade Pan Reality Limited & 2 others [2018] KEELC 4330 (KLR)

Environment and Land Court
23 February 2018
6,404 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A landowner suing neighbours for nuisance in Kenya must back every claim with solid evidence, or the case fails.

What this practically means

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Executive summary

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The Plaintiff, registered owner of plot No.7785/74 in Runda, sued the 1st and 2nd Defendants (then owners/occupiers of the neighbouring plot No.7785/73) and later the 3rd Defendant, who purchased the neighbouring plot in 2010 during the pendency of the suit. He sought injunctions and damages for nuisance and trespass, alleging an unapproved two-storey building erected in 1996 near the boundary, destruction of his cypress fence, diversion of River Ruaka, unapproved massive construction and renovation by the 3rd Defendant in 2011, cultivation of riparian land causing flooding in May/June 2011, and infringement of privacy and natural light. The Defendants denied the allegations, asserting approved building plans, and the 2nd Defendant counterclaimed for defamation, nuisance and trespass. The 2nd Defendant testified for the 1st and 2nd Defendants; the 3rd Defendant testified and called a Senior Development Control Officer of Nairobi City County, who confirmed that the building plans were approved on 9th August 1989. The court framed issues on approvals, nuisance, privacy and natural light, flooding, entitlement to relief, costs and the counter-claim. Applying Sections 107 and 109 of the Evidence Act, it held the Plaintiff had not discharged the burden of proof: the Defendants had approvals; the alleged nuisance, diversion and flooding were mere allegations lacking tangible or expert evidence; and the 3rd Defendant, as absolute proprietor under Sections 24(a) and 25(1) of the Land Registration Act, was entitled to quiet enjoyment. The claim was dismissed with costs to the Defendants, and the counter-claim was disallowed entirely for want of evidence. Judgment was delivered at Thika on 23rd February 2018.

Key legal issues

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01

Proof of want of building approvals

Holding

The Plaintiff failed to discharge the burden of proving absence of approval; the Defendants produced approved plans confirmed by a County officer

Reasoning

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.

p. 8
02

Nuisance by the 1st and 2nd Defendants in 1996

Holding

Not proved; the allegations of destroying the cypress fence, diverting River Ruaka and keeping animals were unsupported by any tangible evidence

Reasoning

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.

p. 8
03

Nuisance and infringement of privacy and natural light by the 3rd Defendant's buildings

Holding

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

Reasoning

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.

p. 9
04

Flooding in May/June 2011

Holding

Not proved; no evidence of flooding or expert attribution to the 3rd Defendant, and any flooding was attributable to the long rains

Reasoning

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.

p. 10
05

Counter-claim of the 1st and 2nd Defendants

Holding

Disallowed because no evidence was adduced in support

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Plaintiff's claim in the Amended Plaint dated 22nd May 2012 is dismissed with costs to the Defendants
  2. 2.The 1st and 2nd Defendants' Counter-claim is disallowed entirely

Authorities

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Legislation

  • Evidence ActSections 107(1), 107(2), 109
  • Land Registration ActSections 24(a), 25(1)
  • Civil Procedure ActSection 27
  • Civil Procedure CodeSection 210
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (nuisance and trespass to land)

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, "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.