Njoroge v Hebatullah & 4 others (Environment and Land Case 1513 of 2013) [2025] KEELC 6627 (KLR)
The bottom line
#A Nairobi court ordered a neighbour to pay over Kshs. 28 million and remove gabions that collapsed a wall and destroyed a family's privacy.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Defendant lawfully constructed the gabions on his property.
- 2.Whether the 1st Defendant's gabions were negligently constructed and caused the collapse of the Plaintiff's wall
- 3.Whether the 2nd and 3rd Defendants were negligent in the performance of their duties.
- 4.Whether the Defendants have created a continuing nuisance that has caused the Plaintiff to suffer loss of privacy and loss of security.
- 5.Whether the Plaintiff is entitled to the prayers sought.
Key legal issues
#Whether the gabions required development permission and an EIA licence
The gabions were unlawfully constructed for want of development permission under the Physical Planning Act and an EIA under EMCA's Second Schedule.
Although landscaping is ordinarily low-impact, the court found the 5-metre gabions adjacent to the boundary wall were out of character with the sloping surroundings and constituted a major change in land use, bringing them within Clause 3 of the Second Schedule to EMCA and the definition of 'development' under Section 2 of the Physical Planning Act. Both DW1 and DW4 admitted no approvals were obtained, so the court held the construction unlawful.
Whether the 1st Defendant was negligent and caused the collapse
Negligence established; the gabions were the proximate cause of the collapse of the boundary wall and damage to ancillary structures.
Applying Blyth v Birmingham Waterworks and Donoghue v Stevenson, the court found the sequence of events - a stable wall for fourteen years, gabions in 2011, cracks within months, collapse in December 2012 - proved causation on a balance of probabilities. PW2's expert opinion was preferred over DW4's, who conceded the gabions were too high, improperly positioned and insufficiently spaced from the wall.
Whether the 2nd and 3rd Defendants were negligent
No liability attached to the County or NEMA as they were unaware of the construction.
Although the gabions fell within regulated categories, the court held there was no statutory duty to act where the regulators received no application or complaint. The Plaintiff did not prove on a balance of probabilities that any act or omission by the 2nd or 3rd Defendants caused or materially contributed to the collapse.
Whether a continuing private nuisance existed
The gabions constituted a private nuisance depriving the Plaintiff of privacy and security.
Relying on Fearn v Board of Trustees of the Tate Gallery and the reciprocity principle in Bamford v Turnley, the court held that the alteration of natural contours enabling persistent overlooking into the Plaintiff's compound was an unusual, excessive and unreasonable use of land, actionable as private nuisance, continuing under the 4th and 5th Defendants as successors in title.
Quantum of damages
Repairs awarded at Kshs. 2,905,523 per the 2018 report; loss of rental income at Kshs. 320,000 monthly for 54 months (Kshs. 17,280,000); professional fees Kshs. 280,000; general damages of Kshs. 8,000,000 for nuisance; remote heads disallowed.
The court adopted the updated 2018 Bill of Quantities. Only PW4 and PW6 proved tenancies of defined duration, but the court accepted rental loss as foreseeable and awarded 54 months to June 2016 when the Plaintiff resumed possession. Loss of UK employment income, air tickets, phone cards and legal fees were too remote; the claim for stolen building materials was not proved.
Legal principles established
#- Intrusive visual overlooking of a neighbour's land, where persistent, substantial and out of the ordinary, can amount to actionable private nuisance.
- Where a landowner alters the natural contours of his land so that persons on it can overlook a neighbour's property, the use is unusual, excessive and unreasonable and constitutes private nuisance.
- Loss of rental income can be a direct and foreseeable consequence of damage to premises caused by a neighbour's negligence.
Court orders
#- 1.A declaration that the 1st Defendant was negligent in the construction of the gabions on LR No. 7741/254, which negligence caused the collapse of the Plaintiff's boundary wall and consequent damage to her gate house, double car garage, servant's quarters and leisure centre.
- 2.A declaration for the removal of the existing gabions on the 1st, 4th and 5th Defendants' land by the said Defendants, and restoration of the soil contours to the original position, within 90 days of the judgment.
- 3.In the alternative, the 1st, 4th and 5th Defendants, jointly and severally, within 90 days, to re-do the gabions after obtaining permits and/or licences from the 2nd and 3rd Defendants, in strict compliance with the Report of Engineer Karanja of 14th March 2018, at a height such that one cannot see inside the Plaintiff's property while standing on the reconstructed gabions.
- 4.If the alternative is opted, the 1st, 4th and 5th Defendants to bring down the reconstructed wall and replace it with a professionally designed retaining wall as set out in Engineer Karanja's report dated 14th March 2018, to the satisfaction of Engineer Karanja, with the attendant open drains, upon receiving approvals from the 2nd and 3rd Defendants.
- 5.The 1st Defendant to pay the Plaintiff Kshs. 2,905,523 for the construction of a new boundary wall, including sections incorporating the servant's quarters and leisure area with an electric fence system, the gate house, double car garage, and servant's quarters.
- 6.The 1st Defendant to pay the Plaintiff Kshs. 17,280,000 being loss of rental income.
- 7.The 1st Defendant to pay the Plaintiff Kshs. 280,000 being the engineer's and agent's fees.
- 8.The 1st Defendant to pay the Plaintiff general damages of Kshs. 8,000,000 for private nuisance.
- 9.Interest on the above amounts at court rates from the date of filing the suit until payment in full.
- 10.Costs of the suit to be borne by the 1st Defendant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Damages against the 2nd and 3rd Defendants for failure of statutory duty
No statutory obligation arose because the regulators were unaware of the construction
Loss of employment income in the United Kingdom
Not foreseeable and not proved by contract or termination notice
Out-of-pocket expenses (air tickets, phone cards, Power of Attorney legal fees)
Too remote
Claim for value of stolen building materials (Kshs. 119,400) and punitive/exemplary damages
No relief granted against 2nd and 3rd Defendants against whom these were chiefly sought; theft not established
Costs
Costs of the suit to be borne by the 1st Defendant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, judgment is entered for the Plaintiff as follows:
A declaration be and is hereby issued that the 1st Defendant was negligent in the construction of the gabions on LR No. 7741/254, which negligence caused the collapse of the Plaintiff's boundary wall
A declaration be and as hereby issued for the removal of the existing gabions on the 1st, 4th and 5th Defendants' land by the said Defendants, and restore the soil contours of the said land to the original position, before the construction of the gabions, within 90 days of this judgment
On a balance of probabilities, the Plaintiff has proved that the gabions, as constructed, were the proximate cause of the damage to the Plaintiff's wall, garage and servant quarters
Consequently, it is the finding of this court that the impugned gabions were unlawfully constructed by the 1st Defendant
the court concludes that the 1st, 4th and 5th Defendants' use of their land is unusual, excessive, and unreasonable and constitutes private nuisance
Costs of the suit to be borne by the 1st Defendant.
Issues in the judgment
#The heading to the fourth issue names '1st, 4th and 6th Defendants' while the body and prayers refer to the 5th Defendant
Internal inconsistencies in dates: paragraph 147 refers to the collapse as '28th December, 20212' and to the parcel as 'LR No. 7714/255'
The case number and neutral citation are not stated in the judgment text provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Hebatullah & 4 others (Environment and Land Case 1513 of 2013) [2025] KEELC 6627 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6627/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.