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ELCPartially AllowedEnvironment and Land Case 752 of 2017· [2026] KEELC 5838 (KLR)

Kahara v Waweru & 3 others

Environment and Land Court
23 September 2026
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won an encroachment case using an unchallenged survey report, but lost her claim for lost rental income because she offered no evidence of it.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Land Parcel Dagoretti/Uthiru/580, sued the defendants, alleging that structures erected by their late father, Peter Titi Waweru, on the adjoining Dagoretti/Uthiru/568 encroached onto her parcel by approximately 12 metres, per a private surveyor's report of 11th November 2017. She sought a permanent injunction, eviction and demolition, general damages for loss of user and destruction, costs and interest. The defendants denied encroachment, asserting their activities were confined to parcel 568 and that the suit was fatally defective; DW1 conceded, however, that she had produced no evidence to rebut the alleged encroachment. Framing two issues - encroachment and entitlement to reliefs - the court applied sections 107, 108, 109 and 112 of the Evidence Act and the balance-of-probabilities standard, holding that the unchallenged survey report, admitted without objection and unrebutted by any competing survey, established encroachment on a balance of probabilities. Judgment was entered for the plaintiff: a permanent injunction restraining the 1st and 4th defendants from interfering with the suit property; eviction from the encroached portion with demolition and removal of structures within 90 days; and Kshs 300,000 general damages for trespass, awarded despite absence of proof of specific loss. The claim for loss of user was dismissed for want of evidence, and the plaintiff was awarded the costs of the suit. The claim thus succeeded only in part.

Key legal issues

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01

Whether the Defendants encroached upon the suit property

Holding

Yes - the temporary structure on Dagoretti/Uthiru/568 encroaches on Dagoretti/Uthiru/580 by approximately 12 metres, established on a balance of probabilities via the uncontroverted survey report.

Reasoning

The plaintiff relied on a survey report by a private surveyor admitted as PEX8 without objection. Its findings were not challenged in cross-examination, and the defendants produced no competing survey. DW1 conceded she had produced no evidence to rebut the alleged encroachment, so the plaintiff's evidence on encroachment stood unanswered and was more probable than not.

02

Whether the Plaintiff is entitled to the reliefs sought

Holding

Partially: permanent injunction, eviction and demolition, and Kshs 300,000 general damages for trespass granted; loss of user claim dismissed for want of proof.

Reasoning

The trespass having been established, the defendants could not continue occupying the encroached portion, justifying a permanent injunction and eviction with demolition. General damages were awarded despite absence of proof of specific loss, assessed at Kshs 300,000 having regard to the extent of encroachment. The loss of user claim, however, required evidence of the loss alleged and its extent, which was never adduced.

p. 6

Legal principles established

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  • The legal burden of proof lies on the party who asserts the affirmative and it does not shift; only the evidential burden may move during trial.
  • An unchallenged survey report admitted without objection, and not controverted by a competing survey, may establish encroachment on a balance of probabilities.

Court orders

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  1. 1.A permanent injunction restraining the 1st and 4th Defendants, their agents and/or servants from interfering with Land Parcel Number Dagoretti/uthiru/580.
  2. 2.The 1st and 4th Defendants to be evicted from the encroached portion of Dagoretti/uthiru/580, with the structures demolished and removed within 90 days.
  3. 3.General damages for trespass awarded at Kshs. 300,000/-.
  4. 4.The claim for loss of user dismissed.
  5. 5.Costs of the suit to the Plaintiff.
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution (implied; land use, title and boundary dispute over Dagoretti/Uthiru parcels)

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, "Kahara v Waweru & 3 others", Case Analysis (2026). Environment and Land Case 752 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5838/eng@2026-09-23

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