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ELCDismissedMiscellaneous Application dated 10th April, 2017· [2018] KEELC 4228 (KLR)

Harrican Kioko Ndeti v Joseph Musila Makau [2018] KEELC 4228 (KLR)

Environment and Land Court
23 February 2018
OAO.A. Angote
761 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner forced a court to confirm you cannot sue the wrong person for an access road, and you cannot create one over private land without following Kenya's statutory procedure.

What this practically means

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Executive summary

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The Applicant, registered proprietor of Muputi/Kiima-Kimwe/1096, sought an access order through the neighbouring parcel Muputi/Kiima-Kimwe/1112 to reach the public road to Kyamuluu Secondary School, plus costs and supervision of compliance by the County Commissioner. He alleged that the Respondent, owner of parcel 1112, had blocked his access and that a surveyor had prepared a report and sketch plan re-opening the access road. The Respondent denied owning parcel 1112, asserting it was registered to Kamene Makau and Yula Makau, both deceased with no administrator, and denied the surveyor's visit. The court found parcel 1112 was registered to the two deceased persons as proprietors in common in 1977, and the Applicant led no evidence that the Respondent was proprietor or legal representative; the Respondent was therefore non-suited. Further, the Applicant gave no evidence of any existing or created access road on the parcel. The court held that, parcel 1112 being private land, the procedure under the Public Roads and Roads of Access Act, Cap 399 - notice by the District Road Board, consent of the proprietor and highway authority, and a hearing of affected parties - had to be followed before an access road could be created, and no evidence showed compliance. The application was found unmeritorious and dismissed with costs on 23rd February 2018.

Key legal issues

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01

Whether the Respondent was the proper party against whom an access order could issue

Holding

He was not; the registered proprietors were deceased and the Respondent was not their legal representative, so he was non-suited.

Reasoning

Evidence showed parcel 1112 was registered in 1977 to Kamene Makau and Yula Makau as proprietors in common, both deceased per the Assistant Chief's letter. The Applicant produced no evidence that the Respondent was proprietor or administrator, so no order could issue against him.

p. 2
02

Whether an access road over private land could be created by court order without statutory process

Holding

No; the procedure under the Public Roads and Roads of Access Act, Cap 399 must be followed before an access road can be created over private land.

Reasoning

The court held that since parcel 1112 is private land, the District Road Board must serve notice on the proprietor, obtain consent of the proprietor and the highway authority, and hear all affected parties before an access road may be created; no evidence showed this was done.

p. 2

Legal principles established

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  • A party sued as proprietor of land over which an access road is sought must be shown to be the registered proprietor or legal representative of the proprietor; otherwise he is non-suited.
  • Creation of a road of access over private land must follow the procedure in the Public Roads and Roads of Access Act, Cap 399, including notice by the District Road Board and consent of the proprietor and the highway authority.

Court orders

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  1. 1.The Miscellaneous Application dated 10th April, 2017 is dismissed with costs

Authorities

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Legislation

  • Public Roads and Roads of Access ActCap 399
Jurisdiction invoked
Inherent power of the court to grant an access order; Public Roads and Roads of Access Act, Cap 399

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Harrican Kioko Ndeti v Joseph Musila Makau [2018] KEELC 4228 (KLR)", Case Analysis (2018). Miscellaneous Application dated 10th April, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4228/eng@2018-02-23

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