Festus Kiai & 26 others v Hussein Hassan Ngotho & another [2017] KEELC 1077 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case and balance of convenience for temporary injunction
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
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.
Jurisdiction vis-à-vis the Physical Planning Act
The jurisdictional objection founded on the Physical Planning Act was without merit and was disallowed
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.
Locus standi objection
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
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.
Legal principles established
#- 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
#- 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.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.Costs of the application awarded to the applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.