Sereti & another (Suing as the Legal Representatives of the Estate of Jackson Mokaya) v Macharia & 2 others (Environment & Land Case 415 of 2013) [2025] KEELC 3900 (KLR)
The bottom line
#A Kisii court dismissed a landowner's claim against a neighbouring plot because he provided no evidence of encroachment or any law broken.
What this practically means
#Executive summary
#Key legal issues
#Encroachment of Plot No. 34 into Plot No. 19
No encroachment was proved; the triangular Plot No. 34 was never part of Plot No. 19 and no measurements showing encroachment were given
The court found both plots exist with distinct shapes and boundaries; the Director of Physical Planning testified developments are wall to wall with no encroachment. The plaintiff's roof and verandah had in fact extended beyond Plot No. 19 into the space later comprising Plot No. 34, and were lawfully removed. No evidence fixed any metre of encroachment.
Alleged illegal creation of Plot No. 34
The claim of illegality failed because no statute or law was cited as violated; documentary evidence showed lawful allocation to the 1st defendant in 1970
The court held that allegations of want of advertisement, development plan and public participation were empty without identifying the law breached. County Council letters and 2011 minutes evidenced allocation to the 1st defendant and transfer to the 2nd defendant; whether transfer occurred in 2006 or 2011 did not change the plot's character.
Alleged encroachment onto road reserve and sewer space
Unproved; unsupported by documentary evidence
PW-2's testimony that Plot No. 34 sat on a road reserve and interfered with drainage and sewer space was mere oral assertion with no survey or documentary corroboration, and the Director of Physical Planning testified the plot does not extend to the road reserve.
The defendants' counterclaim
Dismissed as overtaken by events, since DW-1 testified the plaintiff's encroaching structures had already been removed
The counterclaim sought demolition of the plaintiff's roof, verandah and door encroaching into Plot No. 34, plus a permanent injunction. DW-1 conceded these structures had been removed by the Council, so no live controversy remained and no orders were necessary.
Legal principles established
#- A party alleging illegality in the creation/allocation of a plot must point to the specific law violated; bare allegations without legal foundation fail
- Absent a demonstrated easement, a proprietor's rights do not extend beyond the boundaries of the parcel as measured
- Allegations of encroachment must be supported by evidence, including particulars of the extent of encroachment
Court orders
#- 1.The plaintiffs' suit is dismissed
- 2.The defendants' counterclaim is dismissed as having been overtaken by events
- 3.No orders as to costs on both suit and counterclaim - each party to bear his/her own costs
- Jurisdiction invoked
- Original civil suit (land dispute) before the Environment and Land Court under Article 162(2)(b) of the Constitution (as the court established to hear land disputes); the judgment does not expressly cite the provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sereti & another (Suing as the Legal Representatives of the Estate of Jackson Mokaya) v Macharia & 2 others (Environment & Land Case 415 of 2013) [2025] KEELC 3900 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3900/eng@2025-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.