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ELCPartially Allowed· [2018] KEELC 1729 (KLR)

Tima Maulana v Saib Fuad Rudeny [2018] KEELC 1729 (KLR)

Environment and Land Court of Kenya
21 September 2018
JOJ.O. Olola
1,165 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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On unsurveyed Kenyan land with no official records, courts will preserve long-standing access to property until a full trial decides ownership.

What this practically means

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Executive summary

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This was a ruling on two competing interlocutory applications in a land dispute before the Environment and Land Court at Malindi. The Plaintiff, Tima Maulana, applied by notice of motion dated 15th May 2017 for a restraining order preventing the Defendant, Saib Fuad Redeny, from constructing a perimeter wall that would block her only access road to her residence on unsurveyed Residential Plot 'A', Malindi Municipality, pending the hearing of the suit. Ex-parte interim orders were granted on 18th May 2017. The Defendant then applied by motion dated 22nd May 2017 to set aside those orders on grounds of material non-disclosure, alleging the Plaintiff misled the Court with a misleading sketch map, and sought an injunction against her for trespass. The applications were heard together. The Court found that both parties occupy adjacent unsurveyed portions hived from the same parent plot; the Plaintiff bought her portion in 2003 and had enjoyed access for about 11 years, while the Defendant bought in 2013, undertook no official survey, and relied solely on his seller's word. Given the absence of official records capable of resolving entitlement to the land or access at the interlocutory stage, the Court held the interest of justice favoured preserving the Plaintiff's access pending trial. The Defendant's application was dismissed, the Plaintiff's application allowed in terms of Prayer 3, and the costs of both applications were ordered to be in the cause.

Key legal issues

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01

Whether a temporary injunction/restraining order should issue to preserve the Plaintiff's alleged access road over unsurveyed land

Holding

Yes - the Plaintiff's application was allowed and the Defendant restrained from constructing the perimeter wall blocking access pending the hearing and determination of the suit.

Reasoning

Both parties occupy adjacent unsurveyed portions hived from unsurveyed Residential Plot 'A' Malindi Municipality. The Plaintiff bought her portion in 2003 and had enjoyed access for about 11 years. The Defendant bought in 2013, relied only on the seller's word and engaged no official surveyor. With no official records to resolve entitlement at the interlocutory stage, the balance of convenience and the interest of justice favour preserving the Plaintiff's access until trial.

p. 2
02

Whether the ex-parte orders of 19th May 2017 should be set aside for material non-disclosure

Holding

The Defendant's application seeking to set aside the orders was dismissed.

Reasoning

The Defendant alleged the Plaintiff misled the Court through a misleading sketch map and that the right of way cannot be created by legal fiat. However, the Court found that the whole area is unsurveyed, there are no official records, and the Defendant himself relied only on his seller's word without engaging surveyors. The Court therefore declined to disturb the ex-parte orders and instead preserved the Plaintiff's access pending trial.

p. 2

Legal principles established

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  • Where land is unsurveyed and there are no official records establishing entitlement to portions or access at interlocutory stage, a party in occupation and enjoyment of access should not be deprived of it pending full trial.

Court orders

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  1. 1.The Defendant's application dated 22nd May 2017 is dismissed
  2. 2.The Plaintiff's application dated 15th May 2017 is allowed in terms of Prayer No. 3 thereof (restraining order against construction of the perimeter wall blocking access)
  3. 3.The costs of the two applications shall be in the cause
Jurisdiction invoked
Not stated in the judgment (first-instance interlocutory applications in an Environment and Land Court suit)

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, "Tima Maulana v Saib Fuad Rudeny [2018] KEELC 1729 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1729/eng@2018-09-21

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