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ELCPartially AllowedNot stated in the judgment as provided· [2019] KEELC 2632 (KLR)

David Munyui Kimani v Stephen Gichia Mbure & 2 others [2019] KEELC 2632 (KLR)

Environment and Land Court of Kenya
14 June 2019
1,683 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a road surrendered to the public stays public, and neighbours who gated it must reopen it.

What this practically means

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Executive summary

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The plaintiff, a proprietor of LR Kiambaa/Ruaka/2860 (subdivided from LR Kiambaa/Ruaka/2455 which he and Patrick Munyui Njau bought from Tirus Kamau in 2006), sued alleging that in February 2009 the defendants unlawfully closed an access road passing between LR Kiambaa/Ruaka/2455 and LR Kiambaa/Ruaka/1639 by erecting a steel gate, thereby rendering him land-locked. He sought a declaration that the road is a public road of access not belonging to the estate of Mbure Gachira, an order compelling its opening, costs and interest. The defendants maintained the road was created privately from the estate's land after subdivision, had never been surveyed as a public road or converted to one, was no longer in existence, and that the suit was overtaken by events and multiplicitous. The 2nd defendant died and the suit against him abated by consent. Adopting the parties' issues, the court framed two questions: whether the road was public or private, and whether the parties were entitled to the orders sought. Relying on sections 8 to 13 of the Public Roads and Roads of Access Act (Cap 399), Article 62(2)(c) of the Constitution (land surrendered to the state as public land), and the Gatuha and Musundi authorities, the court found the road had been surveyed and surrendered to the public, with no evidence supporting private ownership. It declared the road a public road of access, found the plaintiff's case proved on a balance of probabilities against the defendants jointly and severally, and entered judgment in terms of the plaint's orders (1a), (1b) and 2. Invoking the proviso to section 27(1) of the Civil Procedure Act, it ordered each party to bear their own costs.

Key legal issues

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01

Whether the access road passing between LR Kiambaa/Ruaka/2455 and LR Kiambaa/Ruaka/1639 is a public road of access or a private road belonging to the estate of Mbure Gachira

Holding

The road is a public road of access. Exhibits showed it was surveyed and surrendered to the public for use; no evidence supported the defendants' claim of private ownership.

Reasoning

The court relied on sections 8 to 13 of the Public Roads and Roads of Access Act (Cap 399) and Article 62(2)(c) of the Constitution, which classifies land transferred to the state by way of surrender as public land. Exhibits P Exhibit 4 and D Exhibits 2 and 5 established that the road was surveyed and surrendered to the public. The defendants produced no evidence that the road was ever converted to a private road or that no surrender occurred. The court found the Gatuha and Musundi authorities relevant. Accordingly, the defendants had no right or power to close the road and deny the plaintiff access to his parcel.

p. 3
02

Whether the defendants had the right or power to deny the plaintiff access and use of the access road

Holding

They did not. Having closed the road by erecting a gate, they were required to open it and allow the plaintiff free access.

Reasoning

Because the road was held to be a public road of access, the defendants' erection of a steel gate and refusal of entry were unjustified. The court noted that under sections 10 and 149 of the Land Act the owner of land may apply for an access order and the court has powers to enforce public rights of way. The plaintiff, having been rendered land-locked by the gate, proved his case on a balance of probabilities against the defendants jointly and severally, entitling him to the declaration and opening orders sought in the amended plaint.

p. 3

Legal principles established

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  • Land surveyed and surrendered to the public for use constitutes public land under Article 62(2) of the Constitution, and a road so surrendered is a public road of access which adjoining owners cannot convert to private use or close.
  • Where a road of access has been surveyed and surrendered to the public for use, a party alleging it is private bears the burden; absent such evidence, the road is public and the plaintiff's claim succeeds on a balance of probabilities.

Court orders

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  1. 1.Suit against the 2nd defendant abated following his death (by consent)
  2. 2.Mutation form dated 16th March 2001 in respect of LR Kiambaa/Ruaka/1033 admitted as D Exhibit 5 (by consent)
  3. 3.Declaration that the access road passing between LR No. Kiambaa/Ruaka/2455 and LR No. Kiambaa/Ruaka/1639 is a public road of access and does not belong to the estate of Mbure Gachira or anybody else
  4. 4.Judgment for the plaintiff against the defendants jointly and severally in respect of the access road in terms of orders (1a), (1b) and 2 sought in the plaintiff's amended plaint dated 21st May 2014, including that agents who closed the road open it forthwith and allow the plaintiff free access
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Public Roads and Roads of Access Act (Cap 399)sections 8 to 13 (and section 8 specifically in submissions)
  • Constitution of Kenya, 2010Article 10(2); Article 62(2)(c)
  • Land Actsections 10 and 149
  • Civil Procedure Act (Cap 21)section 27(1) proviso

Cases cited (3)

  • Mary Njeri Gatuha and 3 others -vs- George M Mungai and 25 others
    7017 eKLR
  • Sarah Nasambu Musundi -vs- David Wafula Tela
    (2016) eKLR
  • Great Lakes Company (U) Limited -vs- Kenya Revenue Authority
    (2009) KLR 720
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act and the Land Act, 2012/2016, including the court's power to enforce public rights of way and grant access orders under sections 10 and 149 of the Land 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, "David Munyui Kimani v Stephen Gichia Mbure & 2 others [2019] KEELC 2632 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2632/eng@2019-06-14

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