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ELCAllowedELC Case No. 40 of 2017· [2018] KEELC 2466 (KLR)

David Mwiyei v Julius Musyoka Kilya [2018] KEELC 2466 (KLR)

Environment and Land Court
27 June 2018
ECE. C. Cherono
1,233 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered owner of land parcel No. Mwingi/Mwingi/4114, sued the defendant, owner of adjoining parcel No. Mwingi/Mwingi/339, seeking a permanent injunction restraining the defendant from blocking, occupying or claiming the access road, and a declaration that the defendant is not entitled to block the road, with any structures thereon to be demolished by the County Government of Kitui pursuant to a statutory notice. The case originated in Mwingi as PMCC Case No. 42 of 2016 but was transferred to the ELC at Garissa after magistrates were stopped from handling land matters following the Law Society of Kenya Malindi branch Petition Cause No. 3 of 2015. The plaintiff testified that in about 2015 the defendant's developments blocked his access road; he complained to the Sub-area, District Land office and Town Administrator, and a joint site visit by the District Land Registrar and District Surveyor produced a report (P. Exhibit 9(a)) and a certified survey map showing the encroached 8x6 metre road. The District Surveyor (PW2) confirmed the blockage. The defendant denied blocking the road and merely asked that the plots be measured, calling no witnesses. The court found the plaintiff's evidence candid and credible, the surveyor's report unchallenged, and held the claim proved on a balance of probabilities. Judgment was entered for the plaintiff as prayed in the plaint, with each party to bear their own costs.

Key legal issues

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01

Whether the defendant blocked the plaintiff's access road

Holding

The court found the blockage proved on a balance of probabilities, relying on the plaintiff's testimony, the joint report of the District Land Registrar and District Surveyor (P. Exhibit 9(a)), and the certified survey map, none of which the defendant challenged or rebutted.

Reasoning

The plaintiff testified on oath and produced letters of complaint, a survey map and a joint report by the Land Registrar and District Surveyor who visited the scene. The District Surveyor (PW2) confirmed temporary structures on the 8x6 metre access road. The defendant's bare denial, without witnesses or challenge to the report, did not displace the plaintiff's evidence.

p. 2

Legal principles established

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  • An unchallenged official surveyor's report and survey map establishing blockage of an access road suffices to prove a claim of obstruction of right of way on a balance of probabilities.

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendant as prayed in the plaint
  2. 2.Each party to bear her own costs of the suit
On appeal from
Principal Magistrate's Court, Mwingi
PMCC Case No. 42 of 2016
Jurisdiction invoked
Transferred from the Principal Magistrate's Court at Mwingi pursuant to the orders stopping magistrates from handling Environment and Land matters following Law Society of Kenya Malindi branch Petition Cause No. 3 of 2015

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, "David Mwiyei v Julius Musyoka Kilya [2018] KEELC 2466 (KLR)", Case Analysis (2018). ELC Case No. 40 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2466/eng@2018-06-27

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