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ELCDismissedEnvironment & Land Case 128 of 2019· [2023] KEELC 17202 (KLR)
Waikau & 2 others (Suing as the Administrators of the Estate of the Late Nahashon Samuel Waikau) v Mburu t/a Mwewe Camp
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·~6 min to read original · ~4 min briefThe bottom line
#A Kenyan land court refused to order eviction without a surveyor's report proving the boundary encroachment the neighbours were complaining about.
What this practically means
#Executive summary
#This ruling of the Environment and Land Court at Nakuru (FM Njoroge, J) determined the Plaintiffs' Notice of Motion dated February 15, 2023. The Plaintiffs, administrators of the estate of the late Nahashon Samuel Waikau, sought an order of eviction and demolition of a fence allegedly erected illegally on LR Gilgil/Gilgil Block 1/3037 (Kikopey), warrants of eviction to be executed by JK Wanderi Auctioneers, police security from the OCS Gilgil during execution, and costs. They relied on a consent judgment recorded on October 27, 2020 under which the Defendant was to vacate the suit land within eight months, failing which an eviction order would issue. They alleged the Defendant had partially complied, demolishing main structures but leaving, and later re-erecting, a fence hiving off part of the suit land. The Defendant denied encroachment, asserting he had vacated and fenced his own land per the beacons, and asked that a regional surveyor first confirm the position. The court identified one issue: whether the Plaintiffs were entitled to the orders sought. Noting inconsistencies in the Plaintiffs' affidavit as to whether ½ or ¼ of an acre had been hived off, and the absence of any surveyor's report establishing encroachment, the court held that issuing orders would amount to sheer guesswork. It dismissed the application, directed the parties to jointly engage a surveyor at shared expense to establish whether the fence encroaches and by what extent, with the report to be filed within 30 days, and ordered each party to bear its own costs, with mention on 6/6/2023.
Key legal issues
#01
Whether the Plaintiffs were entitled to eviction and demolition orders for the alleged illegal fence
Holding
The application was dismissed; the Plaintiffs failed to establish encroachment with evidence.
Reasoning
The consent judgment of October 27, 2020 obliged the Defendant to vacate within 8 months, with eviction to issue in default. The Defendant claimed compliance and that the fence follows the beacons. The court noted inconsistencies in the Plaintiffs' affidavit on the extent of the land allegedly hived off (½ or ¼ acre) and found no surveyor's report proving encroachment, so granting the orders would be guesswork. It instead directed a joint survey.
p. 3
Legal principles established
#- A party seeking eviction or demolition orders on the basis of encroachment must first establish the correct boundaries through a qualified surveyor; courts will not grant such orders without a surveyor's report.
Court orders
#- 1.The Plaintiffs' Notice of Motion dated February 15, 2023 is dismissed
- 2.Both parties, equally sharing survey expenses, to engage a joint surveyor to establish whether the Defendant's re-erected fence has encroached into the Plaintiffs' property and by what extent
- 3.The surveyor's report to be filed in court within 30 days from the date of the ruling
- 4.Survey expenses borne equally; if one party defaults, the other may pay and recover the sum as costs of a suit
- 5.Each party to bear its own costs of the application
- 6.Mention on 6/6/2023 to receive the surveyor's report and for further directions
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (original jurisdiction over land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waikau & 2 others (Suing as the Administrators of the Estate of the Late Nahashon Samuel Waikau) v Mburu t/a Mwewe Camp", Case Analysis (2023). Environment & Land Case 128 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17202/eng@2023-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.