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ELCAllowedLand Case No. 88 of 2016· [2017] KEELC 2592 (KLR)

Hannington Tuwei Koskei v Emmanuel Ngeiywa [2017] KEELC 2592 (KLR)

Environment and Land Court
29 May 2017
MNMwangi Njoroge
1,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a landowner to reopen an access road he had blocked, confirming that long-established rights of way cannot be closed off by neighbours.

What this practically means

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Executive summary

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The plaintiff sued the defendant in the Environment and Land Court at Kitale seeking a declaration that the defendant had no legal right to close an access road running between the plaintiff's parcel West Pokot/Siyoi A/217 and the defendant's parcel West Pokot/Siyoi A/218, a mandatory reopening of the road, a permanent injunction and costs. The plaintiff pleaded that the road was created in the 1960s when his father donated five metres of land for it, and that it served his family, neighbours and the public for access to homes and the river. The defendant, though served, filed neither appearance nor defence, and the suit proceeded to formal proof. The plaintiff testified and produced a title deed in his late father's name, a certificate of confirmation of grant appointing him administrator of the estate, 1972 minutes of the Siyoi Section Land Adjudication Committee resolving a boundary dispute in his father's favour, and the record of the Kapenguria Land Disputes Tribunal of 2008 which required the defendant to cede four metres for the road. Instead, in 2014 the defendant closed the existing road, ignoring interventions by the area Chief. Photographic evidence showed a long-established road lined by old live fences with fresh posts recently erected across it. The court found the plaintiff had proved his case on a balance of probabilities and granted the declaration, a mandatory order to reopen the road, a permanent injunction and costs against the defendant.

Key legal issues

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01

Whether the plaintiff proved his claim on a balance of probabilities

Holding

The claim succeeded in formal proof; the plaintiff proved the existence and long user of the access road and the defendant's unjustified closure of it.

Reasoning

The defendant did not enter appearance or file a defence, so the matter proceeded by formal proof. The plaintiff testified and produced a title deed, a certificate of confirmation of grant, adjudication committee minutes of 1972, and the Kapenguria Land Disputes Tribunal record of 2008 requiring the defendant to cede 4 metres. Photographic evidence showed the road was long-established, lined by ancient live fences, with fresh posts recently erected across it. The court concluded the plaintiff's case was proved on a balance of probabilities.

p. 2

Legal principles established

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  • A party who obstructs an access road over which a right of way has been established may be compelled to remove the obstruction and restrained by permanent injunction from closing it.

Court orders

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  1. 1.A declaration that the defendant has no legal right to close the access road between Land Parcels West Pokot/Siyoi A/217 and West Pokot/Siyoi A/218
  2. 2.That the defendant shall upon service promptly and immediately remove all posts and off cuts or any other impediment placed across the road and reopen it and keep it open
  3. 3.A permanent injunction restraining the defendant from ever closing the said road
  4. 4.The defendant to bear the costs of the suit
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (not expressly invoked 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, "Hannington Tuwei Koskei v Emmanuel Ngeiywa [2017] KEELC 2592 (KLR)", Case Analysis (2017). Land Case No. 88 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2592/eng@2017-05-29

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