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ELCPartially AllowedELC 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)

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

Environment and Land Court
24 October 2025
10,358 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This Environment and Land Court at Mombasa judgment (L.L. Naikuni, J) determines a suit by Mahmoud Hussein Taib, registered owner of Plot Mombasa/Block XVI/645, against Mohamed Ali Juma, Jelani Apartments Limited (which had purchased Plot 642 from Juma) and the County Government of Mombasa. The plaintiff claimed encroachment and violation of easement rights of light and air arising from a storeyed construction on Plot 642, pleaded alternatively as breaches of the Land Act and the Physical and Land Use Planning Act (PLUPA), and sought declarations, demolition, compensation, an order compelling the County to enforce an Enforcement Notice, and general damages. After oral evidence, a court-conducted site visit and submissions, the court framed six issues. It found no encroachment proved: the plaintiff called no independent surveyor and the County Surveyor testified the development was within agreed boundaries. No registered or prescriptive easement of light and air was established, the plaintiff's genuine discomfort not amounting to a legal violation. However, the defendants failed to demonstrate full compliance with PLUPA — an Enforcement Notice had issued, the approved plans were incomplete, the plaintiff was omitted from public participation, and six floors were built against an approved four — rendering the development irregular; demolition was declined as disproportionate. The County, which did not appear, was held liable for administrative negligence for failing to enforce its own Enforcement Notice under Section 72 of PLUPA. The court entered judgment partially for the plaintiff: declarations of planning violation and County statutory failure; an Article 42-driven mandatory order against the 2nd Defendant on hoods, waste collection and roof repairs; general damages of Kshs. 1,000,000/- against the County; and the County to pay the plaintiff's costs, with each party bearing its own costs as between the plaintiff and the 1st and 2nd Defendants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 2nd Defendant unlawfully encroached upon the Plaintiff's property and the legal consequences thereof
  2. 2.Whether the 2nd Defendant violated the Plaintiff's easement rights of light and air under Kenyan law
  3. 3.Whether the Defendants' developments complied with the requirements of planning law, including development permission and building regulations
  4. 4.Whether the County Government is liable for failure to enforce an extant Enforcement Notice under applicable statutes
  5. 5.What remedies, if any, are available to the Plaintiff
  6. 6.Who shall bear the costs of the suit

Key legal issues

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01

Encroachment

Holding

No encroachment was proved; the claim for encroachment was dismissed.

Reasoning

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.

p. 14
02

Easement of light and air

Holding

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.

Reasoning

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.

p. 16
03

Compliance with planning law (PLUPA)

Holding

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.

Reasoning

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.

p. 17
04

County Government liability for failure to enforce

Holding

The County Government of Mombasa breached its statutory duty under Section 72 of PLUPA and is liable for administrative negligence.

Reasoning

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.

p. 18
05

Remedies and costs

Holding

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.

Reasoning

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.

p. 21

Legal principles established

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  • 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

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  1. 1.Judgment entered partially in favour of the Plaintiff in respect of the Plaint in its entirety with costs
  2. 2.The Plaintiff's claim for encroachment and violation of easement dismissed
  3. 3.The Plaintiff's prayer for demolition declined
  4. 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. 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. 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. 7.The 3rd Defendant to pay the Plaintiff general damages of Kenya Shillings One Million (Kshs. 1,000,000/-) for administrative negligence
  8. 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

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 17

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

p. 21

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

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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.
p. 14Finding on encroachment
Easements must be established by law and not merely by inconvenience caused by a neighbour’s lawful construction.
p. 15Easement law
The requirement for development permission is not a mere formality. It is a substantive safeguard to ensure orderly development, environmental protection, and public participation.
p. 17Development permission under PLUPA
The Court finds that the County Government breached its statutory duty under Section 72 of PLUPA and is liable for administrative negligence.
p. 18County liability
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.
p. 21Final orders - damages
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
p. 21Final orders - costs

Issues in the judgment

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material

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

material

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

minor

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

minor

The plaintiff's own pleaded cause of action describes the 3rd Defendant as the '3rd Respondent' in one passage

minor

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

material

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

minor

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

minor

PW-1's witness statement is recorded as dated 18th October, 2018 while the plaint is dated 18th October, 2021

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, "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.