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ELCPartially AllowedCase No 115 of 2017· [2019] KEELC 1215 (KLR)

Paul Kipkurui Koskei & another v Stephen Sagiruk & 2 others [2019] KEELC 1215 (KLR)

Environment and Land Court
30 October 2019
1,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court permanently blocked two neighbours from re-routing a road through a family homestead, but cleared the local chief of any involvement.

What this practically means

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Executive summary

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The plaintiffs, administrators and beneficiary of the estate of Kipkoske Arap Mase (deceased), sued three defendants over the proposed construction of a road through their homestead on land parcel LR No. Nakuru/Olenguruone/Chepakundi/1381 in Olenguruone. They alleged that although the road between the suit parcel and the 1st defendant's parcel No. 1471 had a fixed route on the map, the defendants had influenced a surveyor to re-route the road through the plaintiffs' homestead, with the 3rd defendant, the area chief and the District Officer pressurising the re-routing. They sought a permanent injunction, costs and interest. The 1st and 3rd defendants entered appearance but filed no defence; the 2nd defendant did not participate. At the hearing the 1st plaintiff testified as PW1 and the 2nd plaintiff as PW2, adopting witness statements and producing a certificate of confirmation of grant, a land certificate, and a notice dated 31st October 2015 from the Assistant Chief stating that the 2nd plaintiff's two houses were in the middle of the road and would be demolished within 60 days. The defence cases were closed for want of appearance, and only the plaintiffs filed submissions. Holding the plaintiffs' case uncontroverted and proven on a balance of probabilities, the court dismissed the case against the 3rd defendant with no order as to costs, entered judgment against the 1st and 2nd defendants jointly and severally, granted a permanent injunction restraining the road construction through the plaintiffs' homestead, and awarded the plaintiffs costs and interest. Judgment was delivered at Nakuru on 30th October 2019 by D. O. Ohungo J.

Key legal issues

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01

Proof of the plaintiffs' claim for a permanent injunction against road construction through their homestead

Holding

Judgment entered against the 1st and 2nd defendants jointly and severally with a permanent injunction granted, the plaintiffs' uncontroverted case having been proven on a balance of probabilities

Reasoning

The plaintiffs produced a certificate of confirmation of grant showing the suit parcel was wholly distributed to the 2nd plaintiff, a land certificate, and a notice dated 31st October 2015 from the Assistant Chief stating the 2nd plaintiff's two houses were in the middle of the road and would be demolished within 60 days. With no defence filed and no appearance by the defendants despite service, the case was uncontroverted and the court was satisfied on the evidence.

p. 2
02

Liability of the 3rd defendant

Holding

The case against the 3rd defendant was dismissed as no involvement in the road construction issues was shown

Reasoning

Although the plaintiffs alleged that the 1st and 2nd defendants had influenced the 3rd defendant, the area chief and the District Officer, to force re-routing of the road, the court found nothing in the material before it demonstrating the 3rd defendant's involvement in the road construction issues, and accordingly dismissed the claim against the 3rd defendant with no order as to costs.

Legal principles established

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  • An uncontroverted plaintiff's case proved on a balance of probabilities supports judgment as prayed

Court orders

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  1. 1.Case against the 3rd defendant dismissed with no order as to costs
  2. 2.Judgment entered against the 1st and 2nd defendants jointly and severally
  3. 3.Permanent injunction restraining the defendants by themselves, their servants, employees, contractors and or authorized agents from proceeding with the road construction through the plaintiffs' homestead on land parcel LR No. Nakuru/Olenguruone/Chepakundi/1381
  4. 4.Plaintiffs awarded costs of the suit and interest thereon
Jurisdiction invoked
Original civil jurisdiction of the court in respect of land LR No. Nakuru/Olenguruone/Chepakundi/1381

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, "Paul Kipkurui Koskei & another v Stephen Sagiruk & 2 others [2019] KEELC 1215 (KLR)", Case Analysis (2019). Case No 115 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1215/eng@2019-10-30

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