Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons filed 17th August 2016 (with Notice of Motion dated 15th August 2016)· [2017] KEELC 3858 (KLR)

Abdulrhman v Ministry of Lands, Planning and Housing, Mombasa County & 5 others; Khimji & another (Interested Parties) (Civil Suit 225 of 2016) [2017] KEELC 3858 (KLR)

Environment and Land Court
17 February 2017
2,376 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Mombasa dismissed a landowner's bid for temporary road access because two higher courts had already refused him that same access.

What this practically means

#

Executive summary

#
The Applicant, Abdalla Ali Abdulrhman, filed an Originating Summons and a Notice of Motion dated 15th August 2016 seeking an access order under section 140 of the Land Act for his alleged landlocked plot, Mombasa/Block XVII/108, and, pending determination of the suit, maintenance of the status quo allowing continued use of a temporary access road through Plots Mombasa/Block XVII/107 and 106 owned by the 1st and 2nd Interested Parties. The Respondents argued res judicata and want of cause of action; the Interested Parties opposed through a preliminary objection and replying affidavit, contending the dispute had been conclusively dealt with in HCCC No. 236 of 2002, that the Applicant failed to serve adjoining owners as required by section 140, and that his land was not landlocked. Omollo, J. traced the dispute's history: Muriithi, J. had ordered creation of an alternative access road via the Hantoosh Filling Station and expressly declined to create an easement over the Interested Parties' plot; a review application was dismissed on 3rd May 2016; and the Court of Appeal on 15th July 2016 dismissed the Applicant's injunction application. The court held that granting the status quo order would give the Applicant precisely what two superior courts had refused, amounting to sitting on appeal without jurisdiction. Res judicata was not conclusively determined at the interlocutory stage, but the court noted the parties were substantially the same. The Notice of Motion was dismissed with costs, the suit itself not being struck out as unheard on the merits.

Key legal issues

#
01

Whether to maintain the status quo allowing the Applicant continued temporary access through the Interested Parties' land

Holding

The application was dismissed because the order sought would effectively grant the Applicant access through the Interested Parties' land, which both the High Court (Muriithi, J.) and the Court of Appeal had expressly declined to grant

Reasoning

The court reviewed the history: Muriithi, J. in HCCC No. 236 of 2002 ordered an alternative access road created via the Hantoosh Filling Station and expressly refused to create an easement over Plot 107; review was refused on 3rd May 2016 and the Court of Appeal dismissed the related injunction application on 15th July 2016. Granting the present order would replicate refused relief.

p. 5
02

Whether the suit is res judicata

Holding

Not conclusively determined at interlocutory stage, but the court observed the parties and dispute are substantially the same as in HCCC No. 236 of 2002

Reasoning

The court held it inappropriate to make a conclusive res judicata finding on an interlocutory application before the main suit is heard. It nevertheless noted that the Respondents are merely government officers/offices and that the real dispute pits the Applicant against the Interested Parties, as in HCCC No. 236 of 2002. The suit itself was not struck out since it remains unheard on its merits.

p. 5

Legal principles established

#
  • An interlocutory court should not grant relief that effectively reverses what superior courts have already declined to grant, as that would amount to sitting on appeal without jurisdiction
  • A conclusive finding on res judicata is inappropriate at interlocutory stage where the main suit has not been heard

Court orders

#
  1. 1.The Applicant's Notice of Motion dated 15th August 2016 is dismissed with costs
  2. 2.The suit is not struck out because it has not been heard and concluded on its merits

Authorities

#

Legislation

  • Land Actsection 140
  • Registered Land Act (repealed)section 21
  • Town Planning Actnot specified

Cases cited (1)

  • Civil Application No. 24 of 2016
Jurisdiction invoked
Original jurisdiction under section 140 of the Land Act (application for an access order in respect of landlocked land)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdulrhman v Ministry of Lands, Planning and Housing, Mombasa County & 5 others; Khimji & another (Interested Parties) (Civil Suit 225 of 2016) [2017] KEELC 3858 (KLR)", Case Analysis (2017). Originating Summons filed 17th August 2016 (with Notice of Motion dated 15th August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3858/eng@2017-02-17

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