Bhanji & 2 others v Kassamali & another
The bottom line
#A Kenyan court dismissed neighbours' claims over a hedge fence because they had no written estate rules or survey evidence proving trespass or nuisance.
What this practically means
#Executive summary
#Key legal issues
#Whether the hedge fence breached estate rules and regulations
No express prohibition on hedge height exists; the estate's rules are not in writing and no resolution fixed an acceptable height
The plaint pleaded breach of estate rules and regulations, but PW1 conceded in cross-examination that the rules are not written apart from the Articles of Association. The minutes of April 18, 2021 recorded only a suggestion by the 1st defendant to trim the fence, not a resolution, and did not state any acceptable height. Following the principle that what is pleaded must be proved, the claim failed.
Whether trespass was proved
Trespass not proved; no survey or report established encroachment of the hedge, wooden fence or flower pots onto plaintiffs' land
The plaintiffs bore the burden under sections 107 and 109 of the Evidence Act to show unauthorized intrusion onto their land. No report indicated the nature and extent of encroachment, the defendants' surveyor's evidence and photograph no.63 showed the hedge on the boundary, and the court found it implausible that the fence, hedge and pots all encroached at once.
Whether the hedge and flower pots constituted private nuisance
No plausible evidence of nuisance; insects are part of biodiversity and other residents also have hedges
Adopting the definition of nuisance in Nakuru Industries Ltd v S.S Menta & Sons, the court found no evidence that the hedge or flower pots unduly interfered with the plaintiffs' use and enjoyment of land. The insect complaint was not supported by any report linking the insects to the defendants' hedge, and other residents maintained similar hedges.
Whether damages were payable
Damages claim fails as it is consequential on the unproved trespass and nuisance claims
Having found neither trespass nor nuisance proved, the court held the claim for general and exemplary damages could not stand, since damages flow from established causes of action.
Legal principles established
#- He who alleges bears the burden of proving, and what is pleaded must be proved in evidence
- A suggestion in minutes does not amount to a resolution creating a legal obligation
Court orders
#- 1.The plaintiffs' suit is dismissed
- 2.Costs of the suit awarded to the defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land use and nuisance (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bhanji & 2 others v Kassamali & another", Case Analysis (2023). Environment and Land Case Civil Suit E285 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17137/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.