Albert Ochokolo & 2 others v Halima Hussein [2022] KEELC 706 (KLR)
The bottom line
#A Kenyan landlord won an order forcing a tenant to remove an illegal structure, but only because the structure lacked county planning approval, not consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the structure was erected without the plaintiffs' consent
The court found the structure was put up contrary to approved building plans and without consent of the relevant County Government planning permission, though the oral-tenancy consent issue was inconclusive on the parties' word against each other.
The tenancy was oral, so the question of consent turned on the parties' word against each other, requiring corroboration which the plaintiffs did not supply. However, the defendant's own admission that the structure was on a road reserve, and the timing of the 16/4/2016 approval against the earlier demand letter of 8/4/2016, led the court to find the structure contravened approved building plans and lacked county planning permission.
Whether the structure was built on top of a sewer or manhole
The court inferred that although the structure stood on top of a manhole, it was not blocking it, but that it contravened the approved building plans.
The defendant denied building on top of a manhole yet confirmed in re-examination that the manhole is open on both sides, from which the court inferred the structure, though atop a manhole, did not block it. The defendant's admission that the structure stood on a road reserve nonetheless supported the plaintiffs' averment that the structure was contrary to the approved building plans of Amukura House.
Whether the impugned structure should be demolished
Yes - the court directed the defendant to remove the offending structure within 90 days, failing which the plaintiffs may remove it by lawful means.
Having found the structure contravened the approved building plans and was erected without the requisite county planning permission, the court concluded the plaintiffs' case was proved. The defendant's expenditure on the structure earned her no compensation since no counterclaim was filed, and she had enjoyed use of the structure for the roughly seven years the case was pending.
Legal principles established
#- The burden of proving that a structure was built without consent and on a sewer line lies on the plaintiff under sections 107 and 109 of the Evidence Act
- A plaintiff alleging breach of a statutory provision or contract must lay a basis for the specific provision or contract contravened
Court orders
#- 1.The defendant directed to remove the offending structure within 90 days hereof
- 2.In default of compliance, the plaintiffs permitted to proceed and remove the offending structure using lawful means
- 3.Costs of the suit awarded to the plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property L.R. No. South Teso/Angoromo/3823
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Albert Ochokolo & 2 others v Halima Hussein [2022] KEELC 706 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/706/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.