Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2025] KEELC 3900 (KLR)

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)

Environment and Land Court
14 May 2025
2,875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

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

#
The original plaintiff, Jackson Mokaya (since deceased and substituted by Rose Mogoi Sereti and Kennedy Ogero Mokaya), proprietor of Plot No. 19 Birongo Market, sued over the creation and allocation of Plot No. 34, a triangular plot between his plot and the Kisii-Keroka road, registered in the name of the 2nd defendant. He sought a mandatory injunction to demolish structures on Plot No. 34 and a declaration that the plot's creation and allotment were illegal and a nullity, alleging absence of a development plan, lack of advertisement and public participation, violation of Chapter Five land policy, and encroachment into Plot No. 19 and onto a road reserve and sewer space. The 1st and 2nd defendants denied the claims and counterclaimed, alleging the plaintiff had built a roof, verandah and door encroaching into Plot No. 34. The 3rd defendant, the County Government of Kisii, filed no defence. The court found no encroachment: the Director of Physical Planning testified the plots are wall to wall with no encroachment, and no particulars or measurements of encroachment were given. The alleged illegality in the creation of Plot No. 34 failed because no law was cited as violated, and the road reserve and sewer allegations lacked documentary support. The court noted Plot No. 34 was allocated to the 1st defendant in 1970 and transferred to the 2nd defendant, and that whether transfer occurred in 2006 or 2011 did not alter the plot's character. The suit was dismissed and the counterclaim dismissed as overtaken by events, each party bearing their own costs.

Key legal issues

#
01

Encroachment of Plot No. 34 into Plot No. 19

Holding

No encroachment was proved; the triangular Plot No. 34 was never part of Plot No. 19 and no measurements showing encroachment were given

Reasoning

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.

p. 4
02

Alleged illegal creation of Plot No. 34

Holding

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

Reasoning

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.

p. 5
03

Alleged encroachment onto road reserve and sewer space

Holding

Unproved; unsupported by documentary evidence

Reasoning

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.

p. 5
04

The defendants' counterclaim

Holding

Dismissed as overtaken by events, since DW-1 testified the plaintiff's encroaching structures had already been removed

Reasoning

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.

p. 5

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. 1.The plaintiffs' suit is dismissed
  2. 2.The defendants' counterclaim is dismissed as having been overtaken by events
  3. 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.