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ELCPartially AllowedELC Case 1220 of 2013· [2019] KEELC 3819 (KLR)

Amritlal Velji Chavda & another v Geofrey N. Githunguri [2019] KEELC 3819 (KLR)

Environment and Land Court
21 March 2019
EOE. O. Obaga
909 words in judgment
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The bottom line

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A Nairobi court found a neighbour's wall trespassed 1.2 metres onto adjacent land and ordered removal, plus KShs. 1,000,000 in damages.

What this practically means

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Executive summary

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The plaintiffs, joint owners of LR No. 330/703, sued their neighbour, the defendant, owner of LR No. 330/702, alleging that a boundary wall he erected in about the year 2000 encroached on their property. They sought general damages for trespass, a mandatory injunction to remove the encroaching wall (or removal at the defendant's expense), costs and interest. The defendant denied encroachment, stating he bought his land in the 1980s and later subdivided it, putting up apartments on one portion. At trial, a private surveyor (PW2) found an encroachment of 1.056 metres, and a Government Surveyor (PW3) found an encroachment of 1.2 metres, with a beacon inside the defendant's property. The defendant, though invited, did not participate in the surveys. In his submissions he raised adverse possession, limitation and alleged surveyor bias, none of which had been pleaded; the court rejected these, holding that unpleaded defences cannot be raised in submissions. The court found the suit proved on a balance of probabilities and that the trespass, existing since 2000, entitled the plaintiffs to damages. Considering the small size of the strip (about 1.2 metres) and the duration, the court found the claimed KShs. 4,500,000 excessive and awarded nominal damages of KShs. 1,000,000, together with a mandatory injunction to remove the encroaching wall, failing which the plaintiffs may remove it at the defendant's cost, plus costs of the suit and interest. Judgment was delivered at Nairobi on 21 March 2019 by E. O. Obaga, J.

Key legal issues

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01

Whether there was encroachment onto the plaintiffs' property

Holding

Encroachment of about 1.2 metres was established on the evidence of two surveyors

Reasoning

A private surveyor (PW2) found encroachment of 1.056 metres, and a Government Surveyor (PW3) found encroachment of 1.2 metres, with beacon No. Y2 inside the defendant's property. The defendant was invited to the surveys but chose not to co-operate or attend, so he could not dispute the reports. The court found encroachment of about 1.2 metres.

p. 2
02

Whether the encroachment amounted to trespass

Holding

Yes; the denial of the plaintiffs' use of the strip since 2000 constituted trespass entitling them to damages

Reasoning

The erection of the wall in 2000 was not disputed, and the plaintiffs were denied use of the encroached strip, establishing trespass. Damages were assessed considering the size of the strip (about 1.2 metres) and the duration since 2000, leading to nominal rather than the claimed substantial damages.

p. 2
03

Whether unpleaded defences of adverse possession and limitation could be raised in submissions

Holding

No; defences not pleaded cannot be relied upon in submissions

Reasoning

The defendant denied encroachment in his defence but raised adverse possession and limitation for the first time in submissions. The court held that since neither claim nor defence was pleaded, the defendant could not rely on them, applying the principle that parties are bound by their pleadings.

p. 2

Legal principles established

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  • A party who did not plead adverse possession or limitation cannot raise those defences for the first time in submissions
  • In assessing damages for trespass, the court considers the size of the land encroached and the length of time the trespass has existed
  • A surveyor who invites the other party to be present at a survey, and the party elects to be absent, cannot later complain of non-involvement

Court orders

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  1. 1.General damages of Kshs.1,000,000/= (One Million)
  2. 2.A mandatory injunction requiring the defendant to forthwith remove such part of his wall that has encroached on the plaintiffs' property failing which the plaintiffs to remove it at the cost of the defendant
  3. 3.The defendant shall bear costs of this suit
  4. 4.Interest on (a) and (c) at court rates
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land ( trespass/encroachment claim)

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, "Amritlal Velji Chavda & another v Geofrey N. Githunguri [2019] KEELC 3819 (KLR)", Case Analysis (2019). ELC Case 1220 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3819/eng@2019-03-21

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