Taib v Juma & 2 others (Land Case 211 of 2021) [2025] KEELC 7305 (KLR)
The bottom line
#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 2nd Defendant unlawfully encroached upon the Plaintiff's property and the legal consequences thereof
- 2.Whether the 2nd Defendant violated the Plaintiff's easement rights of light and air under Kenyan law
- 3.Whether the Defendants' developments complied with the requirements of planning law, including development permission and building regulations
- 4.Whether the County Government is liable for failure to enforce an extant Enforcement Notice under applicable statutes
- 5.What remedies, if any, are available to the Plaintiff
- 6.Who shall bear the costs of the suit
Key legal issues
#Encroachment
No encroachment was proved; the claim for encroachment was dismissed.
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.
Easement of light and air
No legally cognizable easement of light and air was proved; the claim for easement violation was dismissed, but the 2nd Defendant was directed to keep the intervening pathway clean and safe and install protective hoods.
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.
Compliance with planning law (PLUPA)
The defendants failed to demonstrate full compliance with PLUPA; the development proceeded in violation of planning law, entitling the plaintiff to declaratory relief and damages, but not demolition.
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.
County Government liability for failure to enforce
The County Government of Mombasa breached its statutory duty under Section 72 of PLUPA and is liable for administrative negligence.
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.
Remedies and costs
Declarations issued, an environmental compliance order made against the 2nd Defendant, general damages of Kshs. 1,000,000/- awarded against the County, and costs awarded against the County only.
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.
Legal principles established
#- A party alleging encroachment must prove it on a balance of probabilities, and in boundary disputes survey evidence is indispensable; oral testimony alone cannot outweigh expert and documentary evidence.
- Easements of light and air must be established in law by grant, implication or prescription; mere inconvenience caused by a neighbour's lawful construction does not establish one.
- Development permission under PLUPA is a substantive safeguard, not a formality; failure by a planning authority to enforce an issued enforcement notice is actionable administrative negligence.
- Demolition is a drastic remedy that must be proportionate, considering the stage of development, public interest and availability of alternative remedies.
- Costs follow the event and the successful party is entitled to costs unless there are compelling reasons to depart from that rule.
Court orders
#- 1.Judgment entered partially in favour of the Plaintiff in respect of the Plaint in its entirety with costs
- 2.The Plaintiff's claim for encroachment and violation of easement dismissed
- 3.The Plaintiff's prayer for demolition declined
- 4.A declaration issued that the 2nd Defendant's development on Plot No. Mombasa/Block XVI/642 proceeded in violation of the Physical and Land Use Planning Act, 2019
- 5.A declaration issued that the 3rd Defendant, the County Government of Mombasa, failed in its statutory duty to enforce the Enforcement Notice dated 19th August 2021
- 6.The 2nd Defendant directed to immediately place precautionary and safety measures such as hoods between his building and that of the Plaintiff, collect all wastes dumped between the pavements and repair all damages caused to the Plaintiff's roof and building, in default of which severe punitive action to be taken against him
- 7.The 3rd Defendant to pay the Plaintiff general damages of Kenya Shillings One Million (Kshs. 1,000,000/-) for administrative negligence
- 8.The 3rd Defendant to bear the Plaintiff's costs of the suit; each party to bear its own costs as between the Plaintiff and the 1st and 2nd Defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 159, 162, 176 and 42 of the Constitution of Kenya, 2010; Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011
Relief refused
#Declaration of encroachment and violation of easement; demolition of the storey house; compensation in perpetuity for easement violation
No encroachment was proved on a balance of probabilities and no registered or prescriptive easement of light and air was established; demolition would be disproportionate as the building is substantially complete and the remedy must be proportionate
General damages against the 1st and 2nd Defendants for the illegal construction
The plaintiff proved no encroachment or easement violation against them; damages were awarded only against the County Government for administrative negligence
Costs
The 3rd Defendant shall bear the Plaintiff's costs of the suit; each party shall bear its own costs as between the Plaintiff and the 1st and 2nd Defendants.
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.
Upon the evidence presented, and from the Site Visit conducted by the Honourable Court and the contents of the report, I strongly find that no encroachment occurred.
Easements must be established by law and not merely by inconvenience caused by a neighbour’s lawful construction.
The requirement for development permission is not a mere formality. It is a substantive safeguard to ensure orderly development, environmental protection, and public participation.
The Court finds that the County Government breached its statutory duty under Section 72 of PLUPA and is liable for administrative negligence.
That the 3rd Defendant shall pay the Plaintifi general damages in the sum of Kenya Shillings One Million (Kshs. 1,000,000/-) for administrative negligence.
That the 3rd Defendant shall bear the Plaintifi’s costs of the suit. Each party shall bear its own costs as between the Plaintifi and the 1st and 2nd Defendants
Issues in the judgment
#The disposition refers to a Plaint dated 30th July, 2020, contradicting the opening paragraph which records the Plaint as dated 18th October, 2021 and filed 21st October, 2021
Conflicting case numbers: the body records the plaint as dated 18th October, 2021, while the Site Visit Report annexed is headed ELC Case No. 211 of 2011
Internal inconsistency on site visit dates: the report states the visit was conducted on 17th February, 2025, yet the analysis records the visit as on 6th December, 2025, and refers to a court order made on 6th December, 2025 whereas the report says the order was made on 6th December, 2024
The plaintiff's own pleaded cause of action describes the 3rd Defendant as the '3rd Respondent' in one passage
Inconsistent testimony recorded as to the plaintiff's own plot: PW-1 is described as owner of Plot Mombasa/Block XVI/645 in the pleadings but testified that 'His plot was Mombasa/ Block/XV1 642', the 1st Defendant's plot
Paragraph 61 asserts the plaintiff produced a certified surveyor's report demonstrating encroachment, contradicting paragraphs 63 and 67 which record that no survey report was produced and that the County Surveyor found no encroachment
Conclusion and Disposition states the plaintiff 'has established his case against the Defendants', which is in tension with the dismissal of the claims against the 1st and 2nd Defendants in the same disposition
PW-1's witness statement is recorded as dated 18th October, 2018 while the plaint is dated 18th October, 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Taib v Juma & 2 others (Land Case 211 of 2021) [2025] KEELC 7305 (KLR)", Case Analysis (2025). ELC Case No. 211 of 2011 (as referenced in the Site Visit Report; the suit was instituted by a Plaint dated 18th October, 2021 and filed on 21st October, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7305/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.