Plaintiff v. 1st Defendant & 2nd Defendant (NEMA)
The bottom line
#The Environment and Land Court in Kajiado dismissed a cottages owner's claims against a neighbour's stalled construction because no actual damage or business loss was proved.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st defendant's construction caused damage to the plaintiff's property
No damage was proved; NEMA site visits to the locus in quo revealed no such damage and the plaintiff pointed to none
The court relied on the absence of evidence: NEMA officers visited the site and found no damage, and had there been any, the plaintiff would have pointed it out. Claims of nuisance, shadow over the pool, loss of privacy and blocked views were not substantiated by proof of actual loss. No records of reduced occupancy were pleaded or produced.
Whether an EIA licence was required for the 1st defendant's construction
While Section 58(1) EMCA exempts developments not exceeding 30 housing units, the 1st defendant produced no evidence of the number of units; the court accepted the 2nd defendant's 6/10/2016 inspection report that an EIA report was necessary
The 1st defendant's witness statement said nothing about the number of units and he declined to testify despite being given opportunity, leaving no evidence on the number of units. The court could not accept counsel's assertion that there were fewer than 30 units and therefore accepted NEMA's inspection report finding an EIA was necessary.
Whether the suit is overtaken by events given the claimed completion of construction
The suit is not overtaken by events; the court did not believe the 1st defendant's claim that the project is complete, preferring NEMA's report showing the project stalled at second floor
The 1st defendant neither testified nor attached pictures of a completed project. In contrast, the NEMA status report dated 10/1/2022 showed the project stalled at second floor, and the court believed that report to be a correct assessment of the state of the project. Non-completion left the dispute live.
Whether injunction and demolition orders should issue
Both refused: the 2nd defendant is satisfied the 1st defendant is no longer in breach of the licence, and the building is presumably now compliant, though NEMA may issue notice if it is not
The court exercised its discretion on the prayers in light of NEMA's position that there were no violations of the licence observed at the time of inspection. Damages having failed and compliance having been achieved, injunctive and demolition relief lacked justification, subject to NEMA's liberty to enforce.
Legal principles established
#- A party alleging damage or loss must prove it with evidence; visits by NEMA officers to the locus in quo did not reveal damage to the plaintiff's property
- Under Section 58(1) of the Environmental Management and Coordination Act, no environmental impact assessment licence may be required where the housing development does not exceed 30 housing units
- A defendant who fails to testify and give evidence on a fact within his knowledge leaves the court without evidence on that fact
Court orders
#- 1.No order of permanent injunction issued as per prayer (a) of the plaint, because the 2nd defendant is satisfied that the 1st defendant is no longer in breach of the licence
- 2.No demolition order issued; the 2nd defendant remains at liberty to issue the requisite notice should the building not comply with the law
- 3.No general or special damages awarded, none having been proved
- 4.Each party to bear its own costs
- Jurisdiction invoked
- First-instance civil suit in the Environment and Land Court; no specific jurisdictional provision cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Plaintiff v. 1st Defendant & 2nd Defendant (NEMA)", Case Analysis (2024). Not stated in the judgment (Environment and Land Court suit, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1661/eng@2024-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.