Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPlaint dated 17th December, 2015 (suit number not stated in the judgment)· [2019] KEELC 3336 (KLR)

Jackson Mumo Munywoki & another v Rose Matali & 3 others [2019] KEELC 3336 (KLR)

Environment and Land Court
21 May 2019
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The 1st and 2nd Plaintiffs sued the 1st to 4th Defendants by plaint dated 17th December 2015, seeking demolition of structures erected on the access road linking land parcels Ukia/Utaati/1362 and Ukia/Utaati/1452 to the main Machakos-Makueni Highway, exhumation of bodies illegally buried on that road, an order to the OCS Makueni County to supervise enforcement, and costs. The 1st Defendant denied the claim; the 2nd to 4th Defendants neither entered appearance nor filed defences, with no evidence of service of summons on them. The Plaintiffs, registered and beneficial owners of parcel 1362 respectively, testified that the 1st Defendant had encroached on the road reserve, planting crops, building a house and latrine, and burying relatives, blocking their access. The 1st Defendant asserted that the graves were family gravesites and offered an alternative route. Both parties relied on a surveyor's report of 2nd September 2015 from the Ministry of Land, Housing and Urban Development, which confirmed the road of access passes between parcels 1361 and 1452 and that a grave and house stood on the road. The court found that parcel 1452 was registered to a deceased person, but held that since the 1st Defendant had presented herself as personal representative or as a person with authority over the land, orders could issue against her. Satisfied that the access road passes between parcels 1452 and 1541, the court found a cause of action on a balance of probabilities, made no orders against the unserved 2nd to 4th Defendants, and entered judgment for the Plaintiffs against the 1st Defendant in terms of all four prayers of the plaint, including costs.

Key legal issues

#
01

Existence and position of the access road to parcel Ukia/Utaati/1362

Holding

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

Reasoning

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.

p. 2
02

Orders against a deceased registered owner's land

Holding

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

Reasoning

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.

p. 2
03

Liability of the 2nd to 4th Defendants

Holding

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

Reasoning

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.

p. 1

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. 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. 2.Judgment in terms of prayer (b): an order to exhume all bodies illegally buried on the said access road
  3. 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. 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.