Riech & 2 others v Tiema & 6 others (Environment and Land Case Civil Suit E003 of 2022) [2024] KEELC 3271 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Standard of proof where evidence is uncontroverted
The defendants still bore the burden of proving the counterclaim on a balance of probability notwithstanding the plaintiffs' non-attendance
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.
Property rights under Article 40
The 2nd and 3rd Defendants, as undisputed owners, are entitled to peaceful development, quiet enjoyment, occupation, use and possession of the suit property
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.
Compliance with statutory construction approvals and NCA registration
Injunctions were granted conditionally, and the declaration of compliance refused for want of NCA compliance certificate
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.
Costs
Costs follow the event; the defendants, having been inconvenienced by the plaintiffs' acts, were awarded the costs of the counterclaim
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.
Legal principles established
#- 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
#- 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.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.The OCS Savanna Police Station to supervise the enforcement of the orders issued herein
- 4.The 1st, 2nd and 3rd Defendants shall have the costs of the counterclaim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.