Egoli Estates Limited v Bluebill Enterprises Limited (Environment & Land Case E395 of 2021) [2024] KEELC 6740 (KLR)
The bottom line
#A Nairobi court ordered a landowner to pay KShs 5.1 million after its boundary wall and building columns encroached on a neighbour's property.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant encroached on the plaintiff's land
Yes - the defendant's boundary wall (0.3m) and column bases (0.5m) encroached onto the plaintiff's parcel, constituting nuisance and in substance trespass
The plaintiff's surveyor's reports of August 2019 and 9/09/2020 established encroachment beyond the beacon lines. The reports were produced unchallenged and were never invalidated by contrary evidence. The defendant, which never surveyed its own plot before building, offered no counter-report. The court characterized the encroachment as nuisance and held the defendant to be in substance a trespasser.
Whether the plaintiff proved the special damages of Kshs 5,133,752
Yes - the plaintiff engaged contractors and engineers to correct the protrusion and is entitled to compensation
The plaintiff produced an itemized contractor's bill and a proforma invoice from Metrix Limited for design and supervision. PW3, the consulting engineer, confirmed the remedial measures were done satisfactorily. DW3 admitted the defendant's engineers were satisfied with the methodology though not with liability, and the defendant led no alternative cost evidence. The claim was therefore proved.
Whether the defendant's counterclaim for Kshs 2,379,450 was proved
No - the counterclaim failed for lack of proof
The defendant alleged loss of rental income from tenants terminating their tenancies due to the plaintiff's construction but produced no tenancy agreements, no termination letters and no assessment report of damage. The receipts produced only showed payment of rent. Applying sections 107 and 109 of the Evidence Act, he who alleges must prove, and the ex turpi causa maxim applied against the defendant as the wrongdoer.
Costs of the suit and counterclaim
Costs of both the suit and the failed counterclaim awarded to the successful plaintiff
Under Section 27(1) of the Civil Procedure Act costs follow the event. The plaintiff succeeded in establishing encroachment and proving its damages, while the defendant failed to prove its counterclaim; the plaintiff was therefore entitled to costs of both the suit and of defending the counterclaim.
Legal principles established
#- A successor in title is not bound by a previous owner's failure to complain of an encroachment and may enforce property rights unless barred by law
- One who encroaches on another's land bears the risk of loss if the owner insists on their rights
- Costs follow the event under Section 27(1) of the Civil Procedure Act
Court orders
#- 1.The plaintiff shall be paid the sum of Kshs. 5,133,752/=
- 2.The costs of this suit and counter-claim are awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land (encroachment on title numbers Dagoretti/Riruta/3095 and 3096); Article 40 of the Constitution invoked on the right to property
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Egoli Estates Limited v Bluebill Enterprises Limited (Environment & Land Case E395 of 2021) [2024] KEELC 6740 (KLR)", Case Analysis (2024). Not stated in judgment (Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6740/eng@2024-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.