Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of Motion dated 13th March 2017· [2017] KEELC 1702 (KLR)

Abdalla Mohamed Abdisheikh v Kishan Construction Ltd [2017] KEELC 1702 (KLR)

Environment and Land Court
19 September 2017
JOJ.O. Olola
610 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

A Kenyan court blocked a construction company from using a road through private land, ruling that verbal permission ends the moment the owner withdraws it.

What this practically means

#

Executive summary

#
This was an interlocutory application by way of Notice of Motion dated 13th March 2017 in which the Plaintiff, Abdalla Mohamed Abdisheikh, sought a temporary injunction restraining the Defendant, Kishan Construction Ltd, from trespassing upon, entering, remaining on or putting up a road on his parcel of land known as Ngomeni Squatter Settlement Scheme/1859, with the orders to be enforced by the OCS, Marereni Police Station. The Plaintiff claimed to be the absolute proprietor and alleged that the Defendant had, without authority, created a 9-metre access road through his land to access its own Parcel No. 2099 for construction purposes. In a Replying Affidavit sworn by its director Ranji Kalyan Patel, the Defendant denied unauthorised trespass and asserted that the Plaintiff had verbally granted authority to make the access road. The court noted that it was not disputed that the Plaintiff was the registered owner of the parcel measuring approximately 2.78 hectares, and that the construction and use of the road were admitted. On the disputed verbal permission, the court found from correspondence that some restricted use may initially have been allowed, but held that the Defendant could not continue such use once the Plaintiff withdrew permission, particularly as the Defendant gave no indication it would stop using the land and displayed an apparent sense of entitlement. The court allowed the application in terms of Prayer No. 3 and ordered the Defendant to pay the costs of the application. Judgment was delivered at Malindi on 19th September 2017.

Key legal issues

#
01

Entitlement to a temporary injunction in respect of admitted construction of an access road on registered land

Holding

The court held the Plaintiff entitled to an order preserving the subject parcel of land, since the Defendant's continued use despite withdrawal of permission demonstrated a sense of entitlement and risked taking over part of the Plaintiff's property.

Reasoning

It was undisputed that the Plaintiff was the registered owner of parcel 1859 and that the Defendant constructed and used an access road through it to reach its parcel 2099. The Defendant relied on an alleged verbal permission which the Plaintiff denied. The court found from correspondence that some restricted use may initially have been allowed, but held that even such permissive use lapses upon withdrawal. The Defendant gave no undertaking to stop using the land, justifying a preservation order.

p. 3

Legal principles established

#
  • A party permitted to use another's land for access cannot continue such use once the permission is withdrawn

Court orders

#
  1. 1.The Plaintiff's application allowed in terms of Prayer No. 3 thereof
  2. 2.The Defendant to pay the costs of the application
Jurisdiction invoked
Not stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdalla Mohamed Abdisheikh v Kishan Construction Ltd [2017] KEELC 1702 (KLR)", Case Analysis (2017). Notice of Motion dated 13th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1702/eng@2017-09-19

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