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ELCAllowedConstitutional Petition dated 18th May 2011 (filed 19th May 2011)· [2015] KEELC 160 (KLR)

Merry Beach Limited v Attorney General & 17 others [2015] KEELC 160 (KLR)

Environment and Land Court (High Court) at Malindi
30 October 2015
OAO. A. Angote
3,911 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Malindi ruled that landowners cannot block public roads shown on official maps, and ordered the roads and villas blocking them removed.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of Chembe/Kibabamshe/374 developed with villas and apartments, petitioned alleging that the 10th and 11th Respondents, proprietors of plot 358 (and subdivisions) and plot 519, had built a wall and villas blocking two public roads: the Malindi-Watamu road and the road to the ocean. The Attorney General filed Grounds of Opposition without evidence; the Municipal Council of Malindi deposed that surveys confirmed encroachment by the Petitioner; the 10th Respondent raised a preliminary objection that the Petition re-litigated matters decided in Malindi HCCC No. 52 of 2007; the 13th, 14th, 15th and 18th Respondents supported the Petition. The court heard viva voce evidence. The Petitioner's surveyor (PW1) produced an unchallenged report of 5th December 2013 showing that a stone wall and buildings on plot 358 consumed the 15-metre Malindi-Watamu road and blocked the 10-metre sea-access road, corroborating the Land Registrar's Ruling of 8th February 2008 that adopted the Registered Index Map position. The court held that the issues were not litigated in HCCC No. 52 of 2007, since the Petitioner and supporting Respondents were not parties and the subsequent Registrar's reports did not address the roads; that the subdivision of plot 358 distorted the roads shown on RIM Sheets 19 and 20, an illegality; and that the consent order in that suit could not deprive non-parties of access. The court issued declarations and mandatory injunctions compelling the County Government of Kilifi and the 10th and 11th Respondents to open the roads and demolish developments on them, restrained trespass on plot 374, directed the OCS Watamu to enforce, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the boundary/road issues in the Petition were already litigated in Malindi HCCC No. 52 of 2007

Holding

They were not; the Petitioner, 13th, 14th, 15th and 18th Respondents were not parties to that suit, and the Registrar's reports appointed under the consent did not consider the blocked public roads

Reasoning

HCCC No. 52 of 2007 concerned only a boundary dispute between the proprietors of plots 519 and 358 (and its subdivisions). The Petitioner and the supporting Respondents were strangers to that suit and to the consent order quashing the Registrar's 2008 Ruling. The two reports by Registrar of Titles Charles K. Ngetich made no findings on the existing or blocked roads. Relitigation on a constitutional platform was therefore not barred and the preliminary objection by the 10th Respondent failed on the facts.

p. 6
02

Whether two public access roads existed and were closed by the 10th and 11th Respondents

Holding

Yes; the subdivision of plot 358 distorted the location of the two roads shown in Registered Index Map Sheets 19 and 20, and the wall built by the 10th and 11th Respondents blocked them

Reasoning

PW1's surveyor's report of 5th December 2013, based on the 1997 map and RIM overlay, was unchallenged: neither the 10th nor 11th Respondents nor their surveyors testified, and the Chief Land Registrar did not testify. PW1 established that a stone wall and buildings on plot 358 consumed the 15-metre road from Malindi to Watamu and blocked the 10-metre access to the sea. The court accepted the Registrar's 2008 Ruling adopting the RIM position and ordered the roads reopened.

p. 7

Legal principles established

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  • Where the Registered Index Map has not been amended to reflect subdivisions, a proprietor cannot move or block roads existing before the subdivisions, as this is an illegality infringing the access rights of neighbouring proprietors and the public
  • A consent order between two parties in prior litigation cannot be used to deprive a non-party of the right to access its land and the ocean using a public road demarcated on the Registered Index Map

Court orders

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  1. 1.Mandatory injunction compelling the County Government of Kilifi, successor of the 8th Respondent, to identify the location of the road and open up the road leading to Chembe/Kibabamshe from Malindi to Watamu using the Registered Index Map diagrams 19 and 20 and the Geodata Land Surveyors report of 5th December 2013
  2. 2.Declaration that the road serving Chembe/Kibabamshe enabling the Petitioner to access the suit property from Malindi or Watamu and the road between Chembe/Kibabamshe 374 and plot 362 leading to the ocean are public roads and should be opened up forthwith
  3. 3.Mandatory injunction compelling the 10th and 11th Respondents to forthwith re-open the public roads they closed in April 2011, in default the Petitioner authorised to do so with adequate security at their costs
  4. 4.Mandatory injunction compelling the 10th Respondent to demolish villas and other developments standing on the public road between original plot Chembe/Kibabamshe 358 and Chembe/Kibabamshe/374 and remove debris, in default the Petitioner to do so at the 10th Respondent's costs
  5. 5.Injunction restraining the 10th and 11th Respondents from trespassing, entering or building on any part of Chembe/Kibabamshe/374
  6. 6.The Kilifi County Government to close any purported road opened in the locality of the suit property which is not in the R.I.M
  7. 7.The OCS, Watamu Police Station to enforce these orders
  8. 8.Each party to bear its/his own costs
Jurisdiction invoked
Constitutional Petition (petition filed in the High Court/ELC); no specific article cited in the judgment

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, "Merry Beach Limited v Attorney General & 17 others [2015] KEELC 160 (KLR)", Case Analysis (2015). Constitutional Petition dated 18th May 2011 (filed 19th May 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/160/eng@2015-10-30

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