Kahara v Waweru & 3 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendants encroached upon the suit property.
- 2.Whether the Plaintiff is entitled to the reliefs sought.
Key legal issues
#Whether the Defendants encroached upon the suit property
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.
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.
Whether the Plaintiff is entitled to the reliefs sought
Partially: permanent injunction, eviction and demolition, and Kshs 300,000 general damages for trespass granted; loss of user claim dismissed for want of proof.
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.
Legal principles established
#- 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
#- 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.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.General damages for trespass awarded at Kshs. 300,000/-.
- 4.The claim for loss of user dismissed.
- 5.Costs of the suit to the Plaintiff.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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)
Relief refused
#General damages for loss of user (mesne profits) and destruction
No evidence adduced from which the alleged loss and its extent could be ascertained.
Costs
The Plaintiff shall have the costs of the suit.
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.
A Court determines disputes on the evidence placed before it, not on the strength of the assertions made by the parties.
The Plaintiff's evidence on that question therefore stands unanswered. I find, on a balance of probabilities, that the temporary structure on Land Parcel Number Dagoretti/Uthiru/568 extends beyond its boundary and encroaches upon the suit property by approximately 12 metres.
A permanent injunction is hereby issued restraining the 1st and 4th Defendants, their agents and/or servants from interfering with Land Parcel Number Dagoretti/uthiru/580.
The 1st and 4th Defendants shall be evicted from the portion of Land Parcel No. Dagoretti/uthiru/580 encroached upon by their structures, and the structures standing thereon shall be demolished and removed within 90 days.
The Plaintiff is awarded Kshs. 300,000/- as general damages for trespass.
Issues in the judgment
#Delivery location conflicts with court station
Judgment entered against all defendants although 2nd and 3rd defendants were stated to be deceased
Plaint dated 31st August 2017 but witness statement adopted as evidence in chief dated 24th January 2024, unexplained
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.