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ELCPartially AllowedELC Case No. 95 of 2017 (formerly Machakos ELC Case No. 165 of 2011)· [2025] KEELC 8041 (KLR)

Nganga v Ngossor & another (Environment and Land Case 95 of 2017) [2025] KEELC 8041 (KLR)

Environment and Land Court
13 November 2025
7,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered negligent builders next door to pay Kshs 2.5 million for damaging a neighbour's property, but refused Kshs 5.2 million because no receipts proved the loss.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R. No. 4480/163 Ngong where he ran a bar and restaurant, sued the defendants (husband and wife, proprietors of adjoining L.R. No. 4480/164) claiming they encroached, trespassed and negligently excavated along the common boundary in 2009, damaging his perimeter wall and building and forcing closure of his business on 1st July 2011. He sought an injunction, special damages of Kshs. 5,200,000/= for restoration, general damages for loss of business, interest and costs. The defendants denied liability, asserting they conducted an EIA, obtained approvals, and counterclaimed for trespass, nuisance and projected income of Kshs. 118,800,000/= over 7.5 years, relying on a court-ordered survey finding a 30cm (elsewhere 20cm) encroachment by the plaintiff. The court framed three issues: entitlement to the plaintiff's reliefs, entitlement to counterclaim reliefs, and costs. It held the defendants owed and breached a duty of care, causation being established by the plaintiff's unrebutted engineering report, the defendants' own site inspection report, and the stop notices; contributory negligence was unpleaded and unsupported by expert engineering evidence. Special damages failed for want of strict proof, but general damages of Kshs. 2,500,000/= with interest were awarded. The counterclaim failed: the 20cm encroachment was de minimis, the nuisance claim was barred by ex turpi causa, and the loss was speculative. The counterclaim was dismissed entirely and the plaintiff received costs of the suit and counterclaim. Judgment delivered at Kajiado on 13th November 2025 by M.D. Mwangi, J.

Key legal issues

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01

Whether the Defendants were negligent in their excavation and construction works

Holding

Yes. The Defendants owed and breached a duty of care; their excavation below the strip foundation undermined the plaintiff's perimeter wall and building, and they lacked approvals (NEMA licence obtained in 2014, five years after works began).

Reasoning

The court found the duty of care arose from the proximity of adjoining landowners and the obvious risk of excavation near foundations. The plaintiff's unrebutted engineering report, the Defendants' own site inspection report recording excavation below the strip foundation, the stop notice and the Public Health Officer's report established breach and causation on a balance of probabilities. Non-compliance with statutory building controls weighed in favour of breach.

02

Whether the plaintiff proved special damages of Kshs. 5,200,000/= for restoration

Holding

No. The special damages failed for want of strict proof, but general damages of Kshs. 2,500,000/= were awarded for loss of business and disruption.

Reasoning

The court restated that special damages must be strictly pleaded and strictly proved. No receipts, payment vouchers or contemporaneous invoices substantiated the claimed sum; only engineering estimates and Bills of Quantities were produced. Nevertheless, proved loss, closure of business and damage justified general damages, quantified by reference to comparable awards and the multi-year disruption.

p. 10
03

Whether the Defendants' counterclaim for trespass and nuisance succeeded

Holding

No. The alleged 20cm encroachment was de minimis and could not sustain trespass; the nuisance claim failed because the Defendants themselves were the party found at fault by the authorities.

Reasoning

Relying on Azzuri Limited v Pink Properties Limited, the court held the 20cm deviation negligible given longstanding occupation without objection. The ex turpi causa maxim applied since the stop notices faulted the Defendants. The Kshs. 118,800,000/= projected loss was speculative, admitted by DW1 as unquantified, and unsupported by strict proof.

p. 12
04

Whether contributory negligence by the plaintiff was established

Holding

No. Contributory negligence was never pleaded and no expert engineering evidence linked any alleged effluent or defective construction to the structural failure.

Reasoning

The court held that assertions of contributory causation advanced only in submissions cannot be accepted. Under Section 48 of the Evidence Act, opinions on science or art require specially skilled persons; the Defendants produced no engineer or technical report on structural causation, so the surveyor's opinion carried no probative value on that issue.

p. 9

Legal principles established

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  • The elements of the tort of negligence are duty of care, breach of that duty, and loss and damage resulting from the breach
  • Special damages must be specifically pleaded and strictly proved before they can be awarded
  • A minor encroachment may be dismissed as de minimis and cannot sustain a claim of trespass
  • Contributory causation assertions cannot be accepted where not pleaded and unsupported by expert engineering evidence

Court orders

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  1. 1.The plaintiff's claim is allowed in the following terms
  2. 2.The Defendants, their servants, workmen, agents, or any persons acting through them are permanently restrained from further damaging or interfering with the Plaintiff's property, use, and enjoyment of L.R. No. 4480/163 Ngong
  3. 3.The Plaintiff is awarded general damages in the sum of Kshs. 2,500,000/= for loss of business and disruption occasioned by the Defendants' negligent acts, with interest at court rates from the date of judgment until payment in full
  4. 4.The Defendants' counterclaim is dismissed in its entirety
  5. 5.The Plaintiff shall have the costs of the suit and the counterclaim against the Defendants
  6. 6.Any other reliefs sought by the parties and not specifically granted herein are refused

Authorities

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Legislation

  • Land Registration ActSection 18
  • Evidence Act (Cap 80)Sections 48, 107, 108
  • Local Government (Adoptive By-Laws) (Building) Order, 1968general (repealed)
  • Trespass Act No. 48 of 1962Section 3(1)
  • Civil Procedure ActSection 27
  • Registration of Titles Act (RTA)general (repealed)

Cases cited (18)

  • Donoghue v Stevenson
    [1932] AC 562 / [1932] ALL ER 1
  • Kanjabi Wariari v Dennis Mutwiri Muriuki & another
    [2022] eKLR
  • Elijah Ole Kool v George Ikonya Thuo
    [2001] eKLR
  • Equity Bank Ltd v Gerald Wang'ombe Thuni
    [2015] KEHC 2474 (KLR)
  • Provincial Insurance Co East Africa Ltd v Nandwa
    1995-1998 2EA 288
  • Githiomi v Maina
    (Civil Appeal 111 of 2019) [2025] KECA 175 (KLR)
  • Doshi v Chemutut & 7 others
    (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR)
  • Charles Ogejo Ochieng v Geoffrey Okumu
    [1995] KECA 169 (KLR)
  • William Kamunge Gakui v Eustace Gitonga Gakui
    (Civil Appeal 16 of 2013) [2014] KECA 39 (KLR)
  • Azzuri Limited v Pink Properties Limited
    [2017] KEELC 2604 (KLR) / [2018] eKLR
  • County Government of Meru v M'Muktha
    (Civil Appeal No. 28 of 2019) [2024] KECA 1616
  • Florence Mbuvi v Faustina Holdings Ltd & Another
    ELC No. 398 of 2017
  • In re Estate of Cyrus Kingori Ngotho (Deceased)
    [2021] KEHC 6959 (KLR)
  • Hosea Nyandika Mosagwe & 2 Others v County Government of Nyamira
    [2016] KEHC 4931 (KLR)
  • Standard Chartered Bank v Masinde
    (Civil Appeal 139 of 2023) [2025] KEHC 7181 (KLR)
  • IEBC v Stephen Mule & 3 Others
    Civil Appeal 219 of 2013
  • Lincoln Kivuti Karingi & Another v Michael Njuguna
    [2021] (Makindu)
  • Anna Wairimu v Jane W. Mwangi
    [2018] KEELC 1027
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (article 162(2)(b) of the Constitution; transferred from Machakos ELC to Kajiado ELC)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nganga v Ngossor & another (Environment and Land Case 95 of 2017) [2025] KEELC 8041 (KLR)", Case Analysis (2025). ELC Case No. 95 of 2017 (formerly Machakos ELC Case No. 165 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8041/eng@2025-11-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.