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ELCPartially Allowed· [2021] KEELC 1805 (KLR)

Curzon Properties Limited v Brookside Hill Limited [2021] KEELC 1805 (KLR)

Environment and Land Court
30 September 2021
EWE. K. Wabwoto
1,916 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a landowner to demolish a boundary wall encroaching on a neighbour's Nairobi property, at his own cost, within 30 days.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (E. K. Wabwoto, J) on the Plaintiffs' Notice of Motion dated 15 July 2021 seeking a mandatory injunction compelling the defendant to demolish a boundary wall/fence encroaching on the plaintiff's property L.R No. 1870/III/202 from the defendant's adjacent parcel L.R No. 1870/III/555 along Brookside Drive, Nairobi. The application was unopposed; the defendant filed no response despite service. The plaintiff relied on a surveyor's report by Eric Nduhiu (March 2021) confirming encroachment of 72 square metres, with an average departure of 0.8 metres from the beacon line and a maximum of 1.7 metres at a kink. The court examined sections 18 and 19 of the Land Registration Act, holding that the boundary here was a fixed boundary outside the Registrar's jurisdiction. On the law of mandatory injunctions, the court applied Giella v Cassman Brown as supplemented by Kenya Breweries v Okeya and Nation Media Group v Mwau, requiring special circumstances and a higher standard of assurance than for prohibitory injunctions. Finding the encroachment uncontroverted and the matter suitable for summary disposal, the court issued an interim mandatory injunction requiring demolition within 30 days at the defendant's cost, with the plaintiff at liberty to demolish at the defendant's cost upon non-compliance, supervised by the OCS Parklands Police Station. Each party was ordered to bear its own costs of the application.

Key legal issues

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01

Entitlement to an interlocutory mandatory injunction

Holding

The application satisfied the threshold: an uncontroverted prima facie case of encroachment and special and exceptional circumstances warranting summary disposal

Reasoning

The court applied Giella v Cassman Brown as qualified by Kenya Breweries Ltd v Washington O. Okeya and Nation Media Group v John Harun Mwau: a mandatory injunction on an interlocutory application requires special circumstances and a higher degree of assurance. The defendant filed no replying affidavit, so the applicant's evidence, including the surveyor's report confirming a 72 square metre encroachment, stood uncontroverted, justifying that the transgression be dealt with summarily.

p. 3
02

Jurisdiction over boundary disputes under the Land Registration Act

Holding

The boundary in issue is a fixed boundary, which does not fall within the jurisdiction of the Land Registrar

Reasoning

Sections 18 and 19 of the Land Registration Act vest boundary dispute resolution in the Registrar and Surveyor for approximate boundaries, but where boundaries have been fixed the court may entertain the action. The court found the boundary here was a fixed boundary and therefore within the court's jurisdiction.

p. 2

Legal principles established

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  • An applicant for a mandatory injunction must, in addition to the Giella principles, establish special circumstances and prove the case on a higher standard than for a temporary injunction

Court orders

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  1. 1.An interim mandatory injunction compelling the defendant to demolish the encroaching boundary wall/fence between L.R No. 1870/III/202 and L.R No. 1870/III/555 at the defendant's cost within thirty (30) days
  2. 2.Should the defendant not comply after thirty (30) days, the plaintiff be at liberty to demolish the encroached boundary wall at the defendant's costs
  3. 3.The OCS Parklands Police Station shall supervise the enforcement of the demolition order to ensure it is undertaken peacefully
  4. 4.Each party to bear its own costs of the application

Authorities

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Legislation

  • Land Registration ActSections 15-17, 18, 19, 20
  • Survey ActCap. 299

Cases cited (3)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Kenya Breweries Ltd & Another vs Washington O. Okeya
    [2002] eKLR
  • Nation Media Group & 2 Others vs John Harun Mwau
    [2014] eKLR
Jurisdiction invoked
Sections 18 and 19 of the Land Registration Act (No. 3 of 2012); inherent civil jurisdiction of the Environment and Land Court over boundary/encroachment disputes relating to registered land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Curzon Properties Limited v Brookside Hill Limited [2021] KEELC 1805 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1805/eng@2021-09-30

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