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ELCAllowedEnvironment & Land Case 214 of 2017· [2022] KEELC 3806 (KLR)

Mutisya v Mwanzia (Environment & Land Case 214 of 2017) [2022] KEELC 3806 (KLR)

Environment and Land Court
28 July 2022
LNL.L Naikuni
4,965 words in judgment
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The bottom line

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A Mombasa court ordered a neighbour to demolish structures encroaching on another's plot and pay Kshs. 2 million in damages for illegal building.

What this practically means

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Executive summary

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The plaintiff, registered owner of Residential Plot Allotment No. 166 Maganda (Miritini) S.S, Block C 296 within the Maganda Settlement Scheme, sued the defendant, her neighbour, for unlawfully constructing structures that encroached onto her plot and the three-feet space required by County Government of Mombasa by-laws for Swahili houses. She sought a permanent injunction, a mandatory injunction compelling demolition, general damages of Kshs. 2,000,000 and costs. The defendant was served but never entered appearance, so the suit proceeded by formal proof on November 16, 2021. The plaintiff testified with one witness and produced a Letter of Allotment, a surveyor's report, a floor plan and photographs. The court framed four issues: entitlement to permanent injunction, entitlement to mandatory injunction, entitlement to the relief sought, and costs. Applying Giella v Cassman Brown for prohibitory injunctions and the higher threshold of special circumstances for mandatory injunctions (per Kenya Breweries Ltd v Washington Okeyo and Malier Unissa Karim v Edward Oluoch Odumbe), the court found the plaintiff had proved ownership, encroachment, breach of the Physical Planning Act and Revised Building Code 2006 (Clauses AA33, BB55 and BB56.1), and resulting damage including cracked walls, blocked light, access and drainage. Relying on Kiogora Mutai v Chartwell Holdings and the nuisance authorities Tim Mwai v Extra Mile Limited and Loyford Gitari Leonard v Weru Tea Factory, the court awarded general damages of Kshs. 2,000,000. Judgment was entered for the plaintiff with permanent and mandatory injunctions (demolition within 14 days), damages, and costs to the defendant. Judgment delivered on July 28, 2022 by L.L Naikuni, J.

Key legal issues

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01

Whether the plaintiff established a case for permanent injunction

Holding

Yes - through unrebuted pleadings and testimony she demonstrated ownership and encroachment, establishing a prima facie case, and the balance of convenience favoured her

Reasoning

The plaintiff proved ownership of the suit property through a Letter of Allotment and sale agreement, both unrebutted as the defendant never entered appearance. The defendant encroached into the plaintiff's plot and occupied the three-feet space required by law, denying her access, blocking light and drainage and cracking her walls. All conditions for both prohibitory and mandatory injunctions were met.

p. 6
02

Whether a mandatory injunction to demolish the structures should issue

Holding

Yes - special circumstances existed warranting the mandatory injunction

Reasoning

The plaintiff demonstrated ownership, substantial loss, injury and expense caused by the defendant's illegal acts, and the balance of convenience in her favour. The defendant refused to cooperate and never filed a defence, leaving the suit undefended. These amounted to special circumstances justifying a mandatory injunction, with demolition to proceed in accordance with the Physical Planning Act and the Building Code.

p. 7
03

Whether the defendant's construction breached building regulations and entitled the plaintiff to damages

Holding

Yes - the construction contravened the Physical Planning Act, the Revised Building Code 2006 (Clauses AA33, BB55 and BB56.1) and County by-laws on the three-feet space, entitling the plaintiff to general damages of Kshs. 2,000,000

Reasoning

The defendant failed to seek County Government approval and encroached into the three-feet (0.914M) space required for Swahili houses, causing cracks, blocked natural light and drainage. The court adopted the legal ratio in Kiogora Mutai v Chartwell Holdings that builders must comply with the Building Code, and relied on authorities awarding Kshs. 2,000,000 as general damages for nuisance.

p. 4

Legal principles established

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  • A mandatory injunction requires special circumstances and a higher standard of proof than a prohibitory injunction
  • Costs follow the event under Section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.An order of permanent injunction restraining the Defendant, his servants, workmen, agents, employees and/or otherwise whosoever from encroaching, putting up structures, building and in any way modifying Residential plot No. 166 Maganda S.S.
  2. 2.An order of mandatory injunction compelling the Defendant to demolish the structures built on the suit property within fourteen (14) days from the date of judgment
  3. 3.General damages of Kenya Shillings Two Million (Kshs. 2,000,000/=) awarded to the plaintiff
  4. 4.Costs of the suit to be borne by the Defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 40 (and Articles 40(1), (2) and (3))
  • Civil Procedure CodeSections 1A, 3 & 3A
  • Civil Procedure Act, Cap. 21Section 27(1)
  • Civil Procedure Rules, 2010Order 10 Rules 4 and 10; Order 40 Rules 1, 2 and 3
  • Physical Planning ActGeneral (regulations on three-feet space)
  • Revised Building Code 2006Clauses AA33, BB55, BB56.1 and Clause Article 5

Cases cited (7)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Kiogora Mutai v Chartwell Holdings Limited & Fred N. Ojiambo
    [2017] eKLR
  • Tim Mwai & 2 others v Extra Mile Limited
    [2018] eKLR
  • Loyford Gitari Leonard v Weru Tea Factory
    [2017] eKLR
  • Malier Unissa Karim v Edward Oluoch Odumbe
    [2015] eKLR
  • Kenya Breweries Limited v Washington Okeyo
    [2002] EA 109 / [2002] eKLR
  • Jay Super Power Cash and Carry Limited v Nairobi City Council and 20 others
    CA 111/2002
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; powers to grant permanent injunction under Sections 1A, 3 & 3A of the Civil Procedure Code and Article 40 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Mutisya v Mwanzia (Environment & Land Case 214 of 2017) [2022] KEELC 3806 (KLR)", Case Analysis (2022). Environment & Land Case 214 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3806/eng@2022-07-28

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