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ELCOtherNot stated in the judgment as provided· [2017] KEELC 2468 (KLR)

Thomas Mumo Maingey v Sarah Nyiva Hillman & 3 others [2017] KEELC 2468 (KLR)

Environment and Land Court
13 July 2017
OAO.A. Angote
2,576 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos Environment and Land Court held that an unsurveyed road on private land is a private road, dismissed the Plaintiff's injunction, and barred him from using 39 Quarry Road.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (O.A. Angote, J) determined two interlocutory applications in a land dispute between siblings over L.R. Nos. 1338/91, 1338/92 and 1338/93 at Athi River. The Plaintiff, executor of the estate of the late Paul Maingey, sought an injunction restraining the 1st to 3rd Defendants from obstructing 39 Quarry Road, which he alleged was a public road traversing their land, created as part of the sub-division of the original parcel L.R. No. 1338/4. The Defendants applied to strike out the Plaint, set aside the interim injunction for non-disclosure, and restrain the Plaintiff from interfering with their private land. The court examined the title, Deed Plans and survey records, finding that the proposed road appeared only as dotted lines in the executors' sub-division plan and was not accepted by the Director of Surveys, who issued Deed Plans without the road. The Director of Surveys, the Machakos County Surveyor and the National Land Commission all confirmed no surveyed public road traversed the plots, which were accessed by a common road along their North-Western boundary. The court held that any unsurveyed road was private and could only be surrendered with the consent of the registered proprietors. The Plaintiff's application was dismissed, the Defendants' application was allowed in terms restraining the Plaintiff from using 39 Quarry Road pending trial, the OCPD Athi River was directed to enforce the order, costs were awarded to the Defendants, and the suit was set down for pre-trial directions and hearing.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for an interlocutory injunction over 39 Quarry Road

Holding

The Plaintiff failed to establish a prima facie case with chances of success; survey records, the Director of Surveys, the County Surveyor and the National Land Commission all confirmed no public road passes through the suit plots.

Reasoning

The court examined the Deed Plan, sub-division plans and survey approvals. The proposed road appeared only as dotted lines (a proposal) in the executors' sub-division plan, and the Director of Surveys approved Deed Plans without the road. Authoritative letters from the Director of Surveys, the Machakos County Surveyor and the National Land Commission confirmed the plots are accessed from a common road along their North-Western boundary and that no surveyed public road traverses them.

p. 5
02

Whether 39 Quarry Road is a public or private road

Holding

Any road traversing the larger parcel had not been surveyed and was therefore a private road, capable of surrender only with the consent of the registered proprietors.

Reasoning

Although the executors proposed the road in the sub-division plan, the approved survey plan F/R 337/63 did not accept the proposal and the Deed Plans issued excluded it. The court found no evidence of a public road traversing the land before acquisition in 1971, and the National Land Commission confirmed the road was neither surveyed nor documented as an easement.

p. 5

Legal principles established

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  • A party claiming a public right of way must show it was surveyed or otherwise legally established; an unsurveyed road on private land is a private road
  • A private road can only be surrendered as public access with the consent of the affected registered proprietors

Court orders

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  1. 1.The Plaintiff's Application dated 9th April 2015 was dismissed
  2. 2.The Plaintiff and his servants be restrained from interfering or using the road known as '39 Quarry Road' pending the hearing and determination of the suit
  3. 3.The OCPD Athi River Police Station to enforce the order of the court
  4. 4.The Plaintiff to pay the costs of the Defendants' Application
  5. 5.The suit to be set down for pre-trial directions and hearing
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land and rights of way (not expressly stated in the ruling)

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, "Thomas Mumo Maingey v Sarah Nyiva Hillman & 3 others [2017] KEELC 2468 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2468/eng@2017-07-13

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