Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNairobi ELC Case (not specified in judgment)· [2018] KEELC 850 (KLR)

Peter Mburu Burugu v Margaret Njeri Mburu [2018] KEELC 850 (KLR)

Environment and Land Court
31 October 2018
BEB M Eboso
3,596 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed that long-standing use of a path across private land does not create a public road or right of access without following the legal process.

What this practically means

#

Executive summary

#
The plaintiff, proprietor of LR Nos. 4859/17 and 4859/18 in Limuru, sued the defendant (widow of Cyrus Mburu Gichua, owner of adjoining LR 4859/9) after she and her workers allegedly uprooted his gate blocking a disputed passage through his land. He sought a declaration that no public road or road of access traversed his property, a permanent injunction, special damages of Kshs 20,000 and general damages. The defendant counterclaimed for a declaration that a road of access or public road existed across the plaintiff's parcels, connecting LR 4859/9 to Riara Road, and an injunction against its closure. The suit against the 1st to 4th defendants was withdrawn by consent in 1999. The court, considering the Public Roads and Roads of Access Act (Cap 399), held that a public road must be one the public had a right to use before the Act's commencement or reserved for public use, and a road of access can be created only by application under Sections 8 and 9. The registered survey plans, including those produced by the defendant's own surveyor, showed no public road, and there was no evidence of any statutory application or registration of a road of access. The deceased's long use was merely permissive. Following the exhaustion-of-remedies principle, the court dismissed the counterclaim, allowed the plaintiff's suit, and issued a declaration that no legitimate road of access or public road traverses LR 4859/18, restrained the defendant from trespassing, and awarded the plaintiff costs. Special damages failed for want of proof.

Key legal issues

#
01

Whether a public road or road of access exists on the suit property

Holding

Neither exists; registered survey plans show no public road and there is no evidence of a statutory road of access created under the Act

Reasoning

The plaintiff produced titles and survey plans bearing no evidence of a public road, and the defendant's own surveyor confirmed this. No application was made to the district roads board under Section 9 or to the Minister under Section 8 of the Public Roads and Roads of Access Act, so no road of access was created. The deceased's permissive use of the passage could not mature into a statutory road.

p. 4
02

Whether the defendant's counterclaim could succeed

Holding

Dismissed wholly as unmerited

Reasoning

The court held the defendant could not ask it to declare a road where none appears in the registered survey maps and without following the statutory procedure. Where Parliament has provided a clear procedure of redress, it must be exhausted before resort to court; instead the defendant resorted to pulling down the plaintiff's barrier.

p. 4

Legal principles established

#
  • A public road and a road of access are distinct statutory concepts under the Public Roads and Roads of Access Act; a road of access is created only through the statutory procedure under Sections 8 and 9 of the Act

Court orders

#
  1. 1.It is hereby declared that no legitimate road of access or public road traverses the plaintiff's property Land Reference Number 4859/18
  2. 2.The defendant together with her servants and agents are hereby restrained against trespassing upon the plaintiff's property, Land Reference Number 4859/18
  3. 3.The defendant's counterclaim is dismissed
  4. 4.The plaintiff shall have costs of this suit to be borne by the defendant

Authorities

#

Legislation

  • Public Roads and Roads of Access ActCap 399; Sections 2, 8, 9(1)
  • Limitation of Actions ActSection 32
  • East Africa Land Regulations1897
  • Crown Lands Act1902
  • Government Lands ActCap 280

Cases cited (5)

  • Kipkirui Arap Koske vs. Philemon Kipsigei Tangus & Bomet District Land Registrar
    (2015) eKLR
  • Nyanchama Kimaiti vs. Samuel Nguto Onguso & another
    Kisii ELC No. 302 of 2010
  • Aquila Properties Ltd vs. Bhupendra Patel
    Nairobi ELC No. 173 of 2012
  • Dellian Langata Limited vs. Symon Thuo Muhia & 4 others
    Nairobi CA No. 144 of 2014 (2018) eKLR
  • Speaker of National Assembly v Karume
    2008 eKLR (FP) 425
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land (as constituted before B M Eboso J); no specific constitutional provision invoked

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Mburu Burugu v Margaret Njeri Mburu [2018] KEELC 850 (KLR)", Case Analysis (2018). Nairobi ELC Case (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/850/eng@2018-10-31

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