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ELCPartially AllowedNot stated in judgment (instituted by plaint dated 23/6/2014)· [2018] KEELC 4615 (KLR)

John Makeri Kimani v Leah S. Waruingi [2018] KEELC 4615 (KLR)

Environment and Land Court
2 February 2018
BEB M Eboso
562 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court found a neighbour had built on another's plot and ordered compensation of Kshs 370,000 instead of demolition.

What this practically means

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Executive summary

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By plaint dated 23rd June 2014 the plaintiff, beneficial owner of unsurveyed Plot No. C.89 within the Langata Development Company Limited Estate off Githurai-Mwihoko Road, Kiambu County, sued his neighbour, the owner of adjoining Plot No. C.90, alleging that she had encroached onto a portion of his plot and erected structures thereon. He sought a declaration that the encroachment was unlawful, compensation of Kshs. 370,000 (the value of the encroached portion per a valuation report), or in the alternative an order for demolition of the structures, plus costs. The defendant neither entered appearance nor filed a defence, and the suit proceeded ex parte. The plaintiff testified on oath, adopted his witness statement and produced ten exhibits, including a Share Certificate, a Letter of Allotment for Plot C.89, an application to transfer shares from Julius Mwangi Wanjohi, various receipts and a valuation report dated 24th January 2014 by M/s Zanconsult Valuers. Eboso J accepted the uncontroverted evidence of ownership and encroachment but declined to grant the declaration, reasoning that declaratory orders are not the most appropriate in disputes involving unsurveyed and untitled land. The court also declined to order demolition, instead awarding compensation of Kshs. 370,000 with interest from the date of judgment (2nd February 2018), and ordered the defendant to pay the plaintiff's costs of the suit. Judgment was delivered at Nairobi on 2nd February 2018.

Key legal issues

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01

Whether the defendant encroached on the plaintiff's plot and what remedy should issue

Holding

The court found the claim proved on the plaintiff's uncontroverted evidence and awarded compensation of Kshs. 370,000 with interest from the date of judgment, in place of a declaration or demolition order

Reasoning

The suit proceeded formally after the defendant failed to enter appearance or file a defence. The plaintiff testified on oath, adopted his witness statement and produced ten exhibits including a Share Certificate, Letter of Allotment, transfer documents, receipts and a valuation report valuing the encroached portion at Kshs. 370,000. The court accepted this uncontroverted evidence but, considering the land unsurveyed and untitled, held that compensation rather than a declaration or demolition order was the most appropriate relief.

p. 2

Legal principles established

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  • Declaratory orders are generally unsuitable in disputes concerning unsurveyed and untitled land

Court orders

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  1. 1.The defendant shall pay compensation to the plaintiff for the value of the encroached portion of land in the sum of Kshs. 370,000 together with interest thereon from the date of the judgment
  2. 2.The defendant shall pay the plaintiff costs of this suit
Jurisdiction invoked
Original civil jurisdiction over a claim for encroachment on land (Environment and Land Court)

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, "John Makeri Kimani v Leah S. Waruingi [2018] KEELC 4615 (KLR)", Case Analysis (2018). Not stated in judgment (instituted by plaint dated 23/6/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4615/eng@2018-02-02

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