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ELCAllowedELC No. 63 of 2015· [2018] KEELC 3555 (KLR)

Rebecca M’mbone Achola & another v Margaret Tabu Musungu [2018] KEELC 3555 (KLR)

High Court of Kenya
19 April 2018
AKA. K. Kaniaru
747 words in judgment
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The bottom line

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A Kenyan High Court confirmed that a road of access to your land is your legal right, and ordered a neighbour to reopen one she had blocked.

What this practically means

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Executive summary

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The two Plaintiffs, mother and son, sued the Defendant, the registered owner of parcel No. BUKHAYO/BUGENGI/7902, complaining that she had blocked the road of access to their parcel No. BUKHAYO/BUGENGI/7903 by constructing a pit latrine and a kitchen on the road and cultivating it, leaving them without access to the main road. The Defendant was served but neither entered appearance nor filed a defence; interlocutory judgment was entered on 12/2/2016 and the matter proceeded to formal proof. The Plaintiffs testified that they acquired their parcel by purchase in 2012 when the road of access existed, and that the Defendant blocked it in the same year. PW3, the County Land Registrar, confirmed the blockage. Exhibits produced included the title deed, green card, mutation form, area land map, and two letters from the lands office confirming the road was blocked. Written submissions were filed by the Plaintiffs' counsel. The court found the matter uncontroverted and held that the road of access is the Plaintiffs' lawful entitlement and not part of the Defendant's land. The court ordered the road re-opened, gave the Defendant three months to remove her structures, failing which the Plaintiffs may do so through lawful enforcement agencies at the Defendant's cost, granted a permanent injunction against further blocking, and awarded the Plaintiffs costs of the suit plus interest at court rates. Judgment delivered at Busia on 19th April 2018 by A. K. Kaniaru, Judge.

Key legal issues

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01

Whether the Defendant blocked the Plaintiffs' road of access

Holding

The uncontroverted evidence, including testimony of the County Land Registrar and documentary exhibits, established that the Defendant blocked, built on and cultivated the road of access to the Plaintiffs' land.

Reasoning

The Defendant was served but neither entered appearance nor filed a defence; interlocutory judgment was entered and the matter proceeded by formal proof. The Plaintiffs testified they purchased parcel 7903 in 2012 when a road of access existed, and the County Land Registrar confirmed the Defendant blocked it. Documentary exhibits including the green card, mutation form, map and letters from the lands office corroborated the blockage. The court found the matter uncontroverted.

p. 1

Legal principles established

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  • A road of access to land is a lawful entitlement of the landowner, not a favour from a neighbouring landowner.

Court orders

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  1. 1.Order that the road of access be re-opened
  2. 2.Defendant given 3 months from delivery of judgment to remove her structures and other things from the road
  3. 3.If the Defendant does not comply, the Plaintiffs are at liberty to remove the structures themselves through lawful enforcement agencies
  4. 4.Defendant to bear the costs of the removal exercise if she does not co-operate
  5. 5.Injunction restraining the Defendant or others through her or at her behest from blocking the road again
  6. 6.Defendant to pay costs of the suit plus interests at court rates
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)

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, "Rebecca M’mbone Achola & another v Margaret Tabu Musungu [2018] KEELC 3555 (KLR)", Case Analysis (2018). ELC No. 63 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3555/eng@2018-04-19

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