Taib v Juma & 2 others (Land Case 211 of 2021) [2025] KEELC 7305 (KLR)

The plaintiff produced no survey report and called no private surveyor to contradict the County Surveyor, PW-2, who testified that there was no encroachment onto Plot 645 and that the development was within the agreed boundaries. Relying on Siparo v Kantai, Wreck Motor Enterprises and M'Mukanya v M'Mbijiwe, the court held that survey evidence is indispensable in boundary disputes and that the failure to produce contrary expert evidence was fatal to the claim. The Enforcement Notice was not conclusive proof of boundary encroachment.

The plaintiff held no registered easement and pleaded no prescriptive right. While his discomfort was genuine, absent a recognized easement or breach of a specific planning standard there is no legal violation. Guided by Gielink v Domino Investments and Hunter v Canary Wharf, the court held the right to light and air is not absolute. However, invoking Article 42 of the Constitution, the court compelled the 2nd Defendant to maintain a clean and safe environment between the buildings.

The issuance of an Enforcement Notice was prima facie evidence of non-compliance. The 2nd Defendant produced a Notification of Approval but not the full approved plans, admitted building six floors against an approved four, and produced no documentary evidence of a variation. The NEMA EIA report did not include the plaintiff among those consulted. Applying Wainaina and KPLC v Gachoka, and the Mitu-Bell proportionality principle, demolition was declined as the building was substantially complete and no encroachment was proved.

The County issued an Enforcement Notice dated 19th August 2021, thereby acknowledging non-compliance, but took no further enforcement steps. It did not file a defence, appear or justify its inaction, which the court treated as an admission by conduct. Citing Wainaina and KPLC v Gachoka, the court held that the duty to enforce planning law is not discretionary and that administrative inertia causing citizen harm is actionable, warranting a declaration and general damages.

Weighing the proved harms — no encroachment, no easement, but proven planning violations and County inaction — the court tailored proportionate remedies: declaratory relief, mandatory environmental orders against the 2nd Defendant under Article 42, and a modest damages award against the County. On costs, the court applied the principle that costs follow the event, condemning the County, which lost, to pay the plaintiff's costs while leaving the plaintiff and the 1st and 2nd Defendants to bear their own costs.