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ELCPartially AllowedNot stated in judgment· [2017] KEELC 1077 (KLR)

Festus Kiai & 26 others v Hussein Hassan Ngotho & another [2017] KEELC 1077 (KLR)

Environment and Land Court
3 November 2017
1,063 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 blocked construction on a disputed access road, confirming that official roads can legally pass through unsubdivided plots.

What this practically means

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Executive summary

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This was an interlocutory application dated 3rd December 2014 in which the Applicants sought a temporary injunction restraining the 1st Defendant from constructing on, or interfering with, an access road said to traverse plots MN/II/172 and MN/II/173, and an order directing the 2nd Defendant to cancel an approved building plan and demolish structures on the road reserve. The Applicants alleged that the 1st Respondent, with the 2nd Respondent's approval, was building on a road reserve, denying them access to their houses. The 1st Respondent opposed, asserting ownership of a 'house without land' (Swahili house), production of requisite approvals, and that plot 172 had not been subdivided so no road reserve existed; he also challenged the Applicants' locus and the Court's jurisdiction under the Physical Planning Act. The Court found the surveyor's report internally inconsistent and noted that a R.I.M map annexed by the Applicants showed a road traversing plot 172. Holding that it is not illegal for an official road to pass through an unsubdivided plot, the Court found a prima facie case and that the balance of convenience favoured preserving the status quo pending an official survey. The jurisdictional objection was disallowed because the liaison committee cannot grant injunctions, the applicants had first complained to the 2nd defendant, and the core dispute concerns a road of access outside the Physical Planning Act. The application was allowed in terms of prayer 3 only, with a rider that no demolition would be ordered at the interlocutory stage, and costs were awarded to the applicants.

Key legal issues

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01

Prima facie case and balance of convenience for temporary injunction

Holding

The Applicants established a prima facie case with a probability of success, and the balance of convenience tilts towards the road remaining as is pending an official survey

Reasoning

The Court found the surveyor's report internally conflicting, as the sketch map annexed indicated an existing road on plot 172 despite the statement that no official surveyed road existed because of lack of subdivision. The applicants annexed a portion of a R.I.M map showing a road passing through plot 172. The Court held that the absence of subdivision does not preclude an official road traversing a plot.

p. 2
02

Jurisdiction vis-à-vis the Physical Planning Act

Holding

The jurisdictional objection founded on the Physical Planning Act was without merit and was disallowed

Reasoning

The Court gave three reasons: the liaison committee cannot grant an order of injunction, so the applicants were entitled to seek that remedy from the Court; the applicants had first filed a complaint with the 2nd defendant which did not resolve the dispute to their satisfaction; and the core dispute concerns a road of access, which does not fall under the Physical Planning Act.

p. 2
03

Locus standi objection

Holding

The 1st Respondent's assertion that the Applicants lack locus was raised but not upheld; the Court proceeded to determine the application on the merits

Reasoning

The 1st Respondent deposed that the Applicants lack locus to bring the suit. The Court did not expressly rule on this objection in its analysis, instead proceeding to find that the Applicants had met the threshold for a temporary injunction and that the jurisdictional objection lacked merit.

p. 2

Legal principles established

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  • It is not strange or illegal for an official road to pass through a plot even where the plot has not been subdivided

Court orders

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  1. 1.Temporary injunction granted in terms of prayer 3 of the application, restraining the 1st Defendant from constructing, sealing, disposing off, charging or interfering with the suit land traversing plot Numbers MN/II/172 and MN/II/173 and access road pending hearing and determination of the suit
  2. 2.Rider that if the house is on the road, the same shall not be demolished as the order of temporary injunction cannot be translated to an order of mandatory injunction; the matter shall await determination of the suit on merits
  3. 3.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Physical Planning ActNot specified
Jurisdiction invoked
Not expressly stated; the court exercised original jurisdiction to grant temporary injunctive relief, dismissing a jurisdictional objection based on the Physical Planning Act

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, "Festus Kiai & 26 others v Hussein Hassan Ngotho & another [2017] KEELC 1077 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1077/eng@2017-11-03

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