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ELCDismissedEnvironment and Land Case Civil Suit E285 of 2021· [2023] KEELC 17137 (KLR)

Bhanji & 2 others v Kassamali & another

Environment and Land Court
27 April 2023
4,023 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs, homeowners in the eight-maisonette Westlands Gardens estate, sued their neighbours for erecting a hedge fence and placing flower pots alleged to encroach on their property and constitute private nuisance, contrary to the estate's rules and regulations. They sought declarations of trespass and nuisance, a mandatory injunction to remove the hedge, general and exemplary damages, costs and interest. The defendants denied trespass, denied any written rules restricting hedge height, and produced a survey report showing a 3-foot fence. The court framed three issues: breach of estate rules, trespass and nuisance, and entitlement to damages. Applying sections 107 and 109 of the Evidence Act, it held the plaintiffs bore the burden of proof. It found no express written prohibition on hedge height, no resolution of the estate company requiring trimming (a suggestion in minutes not amounting to a resolution), and no tangible evidence of encroachment, so trespass failed. On nuisance, adopting the definition in Nakuru Industries Ltd v S.S Menta & Sons, it found no plausible evidence that the hedge or flower pots interfered with the plaintiffs' use and enjoyment of land, noting insects are part of biodiversity and other residents also kept hedges. The damages claim consequently failed. The court observed the neighbours would have benefited from alternative dispute resolution and urged the homeowners to formulate clear written rules. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the hedge fence breached estate rules and regulations

Holding

No express prohibition on hedge height exists; the estate's rules are not in writing and no resolution fixed an acceptable height

Reasoning

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.

02

Whether trespass was proved

Holding

Trespass not proved; no survey or report established encroachment of the hedge, wooden fence or flower pots onto plaintiffs' land

Reasoning

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.

03

Whether the hedge and flower pots constituted private nuisance

Holding

No plausible evidence of nuisance; insects are part of biodiversity and other residents also have hedges

Reasoning

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.

p. 7
04

Whether damages were payable

Holding

Damages claim fails as it is consequential on the unproved trespass and nuisance claims

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Evidence Actsection 107
  • Evidence Actsection 109
  • Trespass Act, Cap 294section 3(1)

Cases cited (12)

  • Alex Waigera Mwaura v Chania Power Company Limited & another
    [2020] eKLR

    Definition/elements of trespass

  • Joseph Kipchirchir Koech v Philip Cheruiyot Sang
    [2018] eKLR

    Trespass principles

  • Thomas Ngarachu Ngugi & 5 others v John Wilfred Wanyoike & 6 others
    [2020] eKLR

    Nuisance requires act or omission causing undue interference with neighbour's use of property

  • MA CGM Kenya Limited v Stout Minera Metals Limited
    [2014] eKLR

    Grant of mandatory injunction

  • Park Towers Ltd v John Mithamo Njika & 7 others
    (2014) eKLR

    Damages for trespass and nuisance as a matter of right

  • John Chumia Nganga v Attorney General & another
    [2019] eKLR

    Damages for trespass and nuisance

  • Joseph Mithika M'ithula v Jacob Mung'athia Munoru
    (2022) eKLR

    Need for documentary evidence of boundaries to prove trespass

  • Hunter & others v Canary Wharf Ltd
    (1997) 2 All ER

    Interference with view not actionable private nuisance

  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR

    He who alleges bears the burden of proving

  • Charter House Bank Limited (Under Statutory management) v Frank N. Kamau
    (2016) eKLR

    What is pleaded must be proved in evidence

  • Galaxy Paints Company Ltd v Falcon Guards Ltd
    [2000] eKLR

    What is pleaded must be proved in evidence

  • Nakuru Industries Limited v S.S Menta & Sons
    (2016) eKLR

    Definition of nuisance from Clerk and Lindsell on Torts

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

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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, "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.