Jackson Mumo Munywoki & another v Rose Matali & 3 others [2019] KEELC 3336 (KLR)
The bottom line
#A Kenyan landowner who blocks a public access road with structures and graves must demolish them and allow exhumation, even where the registered owner is deceased.
What this practically means
#Executive summary
#Key legal issues
#Existence and position of the access road to parcel Ukia/Utaati/1362
On the evidence, including the surveyor's report of 2nd September 2015, the access road to parcel No. Ukia/Utaati/1362 passes between parcels Ukia/Utaati/1452 and 1541, and the Plaintiffs established their claim on a balance of probabilities against the 1st Defendant
The court relied on the joint surveyor's report produced by both sides, which located the road of access between parcels 1361 and 1452 and recorded farming activity, a grave and a house on the road. The 1st Defendant's own evidence confirmed structures and graves on the road and her offer of an alternative route, corroborating the Plaintiffs' case.
Orders against a deceased registered owner's land
Although orders should not issue against a deceased person's estate unless personal representatives are enjoined, the 1st Defendant had presented herself as the personal representative or as a person with authority over parcel Ukia/Utaati/1452, so judgment could issue against her
The surveyor's report and the 1st Defendant's evidence showed the registered owner of parcel 1452 was deceased. Rather than abate or fail, the court treated the 1st Defendant's active management of the land, including her offer of an alternative access route, as sufficient grounding for orders against her personally.
Liability of the 2nd to 4th Defendants
No orders were made against the 2nd to 4th Defendants because they did not enter appearance or file defences and there was no evidence of service of summons on them
The court noted the absence of appearance and defence by the 2nd to 4th Defendants and, importantly, the absence of proof of service. Without service, default or other orders could not issue against them, limiting the judgment to the 1st Defendant.
Legal principles established
#- No orders should be issued against the estate of a deceased person unless its personal administrators have been enjoined as parties to a suit
- A party who presents herself as the personal representative of a deceased registered owner, or as a person with authority to deal with the deceased's land, may be visited with orders relating to that land
- Civil claims are decided on a balance of probabilities
Court orders
#- 1.Judgment entered for the Plaintiffs and against the 1st Defendant in terms of prayer (a) of the plaint: an order for demolition of all structures built and/or erected on the access road linking land parcel No. Ukia/Utaati/1362 and land parcel No. Ukia/Utaati/1452 to the main Machakos Makueni Highway
- 2.Judgment in terms of prayer (b): an order to exhume all bodies illegally buried on the said access road
- 3.Judgment in terms of prayer (c): an order directed to the OCS, Makueni County to supervise the enforcement of the orders of the court
- 4.Costs of the suit awarded to the Plaintiffs against the 1st Defendant (prayer (d))
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning a road of access to registered land parcels
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Mumo Munywoki & another v Rose Matali & 3 others [2019] KEELC 3336 (KLR)", Case Analysis (2019). Plaint dated 17th December, 2015 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3336/eng@2019-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.