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ELCPartially AllowedNot stated in judgment (Environment and Land Court, Nairobi)· [2024] KEELC 3271 (KLR)

Riech & 2 others v Tiema & 6 others (Environment and Land Case Civil Suit E003 of 2022) [2024] KEELC 3271 (KLR)

Environment and Land Court
11 April 2024
2,835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs sued the Defendants seeking declarations that a multi-dwelling apartment construction on Plot No 376, Harambee Sacco (Land Title Number Block 82/5085) was illegal and in breach of approved plans, orders for its demolition, revocation of permits, and permanent injunctions restraining further construction. The 1st, 2nd and 3rd Defendants filed a defence and counterclaim asserting they had acquired the property from the 1st Defendant on 16/08/2021, paid approval fees to Nairobi City County, and that the Plaintiffs interfered with their construction by denying access through the Delta Court gate. The Plaintiffs failed to appear at the hearing on 20/02/2024 despite service, and their case was dismissed for want of prosecution. The counterclaim proceeded ex parte, with the 2nd Defendant testifying. The court held that unopposed evidence still had to be proved on a balance of probability. It found ownership undisputed, the structure resembling a single dwelling similar to others in Delta Court, but noted the defendants failed to display a construction sign board and presented no issued approvals or NCA project registration. Judgment was entered on the counterclaim in part: a permanent injunction against the Plaintiffs' interference, conditional on the defendants obtaining the necessary approvals and permits; a mandatory injunction compelling the County to issue approval letters upon proof of application and payment; supervision by the OCS Savanna Police Station; and costs of the counterclaim to the defendants. The declaration of full architectural compliance was refused as premature without an NCA compliance certificate. Judgment delivered by Mogeni J on 11 April 2024 at Nairobi.

Key legal issues

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01

Standard of proof where evidence is uncontroverted

Holding

The defendants still bore the burden of proving the counterclaim on a balance of probability notwithstanding the plaintiffs' non-attendance

Reasoning

The court held that unopposed evidence is not automatic proof; it must still interrogate the evidence and satisfy itself that the claim is merited. The defendants had to discharge the burden of proof. Reliance placed on Shaneebal Limited v County Government of Machakos and Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka.

p. 4
02

Property rights under Article 40

Holding

The 2nd and 3rd Defendants, as undisputed owners, are entitled to peaceful development, quiet enjoyment, occupation, use and possession of the suit property

Reasoning

Ownership was not contested; the dispute concerned alleged illegal construction. Given undisputed ownership and plaintiffs' failure to adduce evidence, the court found the defendants' Article 40 rights engaged and granted injunctions against the plaintiffs' interference, subject to obtaining approvals.

p. 5
03

Compliance with statutory construction approvals and NCA registration

Holding

Injunctions were granted conditionally, and the declaration of compliance refused for want of NCA compliance certificate

Reasoning

The court noted the sign board was not displayed and no approvals were presented, so orders could not issue as drawn. Project registration with the NCA under section 17 of the NCA Regulations 2014 is required in addition to county approval; absent a compliance certificate the declaration prayer was premature.

p. 6
04

Costs

Holding

Costs follow the event; the defendants, having been inconvenienced by the plaintiffs' acts, were awarded the costs of the counterclaim

Reasoning

Applying the principle that costs generally follow the event, the court found the defendants entitled to costs because the plaintiffs' conduct culminated in the filing of the counterclaim.

p. 6

Legal principles established

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  • Uncontroverted evidence must still be interrogated by the court; a defendant on an unopposed counterclaim must still prove the case on a balance of probability
  • Prayers for injunctions to continue construction may be made conditional on the defendant obtaining the required approvals and permits

Court orders

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  1. 1.A permanent injunction restraining the Plaintiffs, their servants, laborers and any other person claiming through them from continued interference with the 2nd & 3rd Defendants construction of their Residential House, quiet enjoyment, possession, occupation and use of the Property known as Title No Nairobi/Block 82/5085, subject to obtaining the necessary approvals and permits
  2. 2.A mandatory injunction compelling the 6th Defendant Nairobi City County Government to issue the 2nd & 3rd Defendants with the mandatory Approval Letters forthwith, provided the 2nd & 3rd Defendants demonstrate that they applied and duly paid for the necessary mandatory approvals
  3. 3.The OCS Savanna Police Station to supervise the enforcement of the orders issued herein
  4. 4.The 1st, 2nd and 3rd Defendants shall have the costs of the counterclaim

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • National Construction Authority Regulations 2014Section 17

Cases cited (4)

  • Shaneebal Limited v County Government of Machakos
    (2018) eKLR
  • Karuru Munyororo v Joseph Ndumia Murage & another
    Nyeri HCCC No 95 of 1988
  • Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & another
    [2016] eKLR
  • Gichinga Kibutha v Caroline Nduku
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction under Article 162(2) of the Constitution (Environment and Land Court); Article 40 of the Constitution invoked on property rights

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, "Riech & 2 others v Tiema & 6 others (Environment and Land Case Civil Suit E003 of 2022) [2024] KEELC 3271 (KLR)", Case Analysis (2024). Not stated in judgment (Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3271/eng@2024-04-11

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