How man lost house for encroaching on neighbour’s plot

A man in deep thought after losing a case at the Court of Appeal. /AI

When Edmund Kirigha Malusha started constructing a house on his plot in Mombasa, it never occured to him that it would mark the beginning of his troubles.

He ran into an argument with the owner of the adjacent plot, who sought the intervention of the county government citing alleged encroachment on his property.

The county government issued a demolition notice.

Malusha sought a judicial review of the matter, but the Environment and Land Court upheld the demolition notice issued by the County Government of Mombasa over the alleged encroachment dispute.

He appealed the decision but the Court of Appeal at Mombasa dismissed the appeal and upheld the decision by the Environment and Land Court.

The case stemmed from a long-running dispute between Malusha and his neighbour, Fahmi Hussein Swaleh, who owns the adjacent plot.

The County Government of Mombasa, acting on a complaint from Swaleh, issued Malusha a notice on November 19, 2020, requiring him to demolish a structure on his property within seven days, citing trespass.

Malusha sought judicial review orders to quash the notice, arguing that he was not given a fair hearing, that the county government acted beyond its powers, and that the disputed boundary had not been fixed by the Land Registrar.

He further claimed that the county’s actions were biased and that the enforcement notice was issued without proper investigation.

In his affidavit, Malusha stated he had owned the property since 1994, constructing a permanent house with the necessary approvals.

He asserted that the dispute arose after Swaleh began constructing a new house, which left no space for a perimeter wall between the two plots, leading to allegations of trespass when construction activities threatened to overlap onto Malusha’s property.

Malusha commissioned a private survey, which, according to him, showed no encroachment.

He also requested the Land Registrar to fix the boundary, but before this could be done, the county government issued the demolition notice.

The county government, in response, maintained that it acted within its mandate under the Physical Planning Act and later, the Physical and Land Use Planning Act, 2019.

The County’s Building Inspector, Calistus Luseno Imbwaka, stated that a site visit confirmed Malusha’s steel staircase encroached onto Swaleh’s property and that the staircase was not part of the original approved building plan.

The county argued that Malusha failed to utilise established dispute resolution mechanisms, such as seeking a determination from the County Physical and Land Use Planning Liaison Committee.

The ELC, in a judgment delivered on November 9, 2021, found that Malusha had not exhausted the statutory remedies available under the Physical and Land Use Planning Act, 2019.

The court held that the County Government of Mombasa had the authority to issue enforcement notices and that Malusha should have appealed to the Liaison Committee before seeking judicial review.

The suit was therefore dismissed with costs.

Dissatisfied, Malusha appealed, arguing that the ELC erred in applying the doctrine of exhaustion of remedies, that the enforcement notice was issued under a repealed law, and that the Liaison Committee lacked jurisdiction over boundary disputes.

The Court of Appeal, after considering the submissions, upheld the dismissal of Malusha’s appeal primarily on the basis of the doctrine of exhaustion of statutory remedies and the proper exercise of statutory powers by the County Government of Mombasa.

The appellate judges found that the core issues revolved around the exhaustion of statutory remedies and the validity of the enforcement notice.

The court noted that the dispute related to the county government’s statutory powers and that the appropriate procedure was for Malusha to challenge the notice through the Liaison Committee as provided by law.

The court emphasised that judicial review is not the appropriate first recourse when statutory mechanisms for dispute resolution exist and have not been utilised.

"The appellant did not file or attempt to file an appeal to the County Physical and Land Use Planning Liaison Committee (the Liaison Committee) against the enforcement notice as required by law; that the suit therefore offended the doctrine of exhaustion of remedies as provided by statute," the Appellate bench comprising Justices F. Tuiyot, K I Laibuta and G. W. Ngenye-Macharia ruled.

The appeal was dismissed, affirming the ELC’s finding that the county government acted within its powers and that Malusha had not demonstrated exceptional circumstances to bypass the statutory dispute resolution mechanisms.

The judgment brings to a close a protracted legal battle over property boundaries and underscores the importance of exhausting administrative remedies before seeking judicial intervention in land disputes.