Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2019] KEELC 3452 (KLR)

Bernard Mbae Mucheke v Land Registrar Tharaka Nithi District & 3 others [2019] KEELC 3452 (KLR)

Environment and Land Court
7 May 2019
PNP. M. Njoroge
1,907 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that land officials cannot carve an access road through your parcel without your permission — and can be ordered to fix the register.

What this practically means

#

Executive summary

#
The plaintiff, Bernard Mbae Mucheke, sued the Land Registrar Tharaka/Nithi District, the District Surveyor Meru South District and related defendants seeking declarations and rectification orders concerning land parcels Karingani/Ndagani/3182 and 3183, which he purchased from Dickson Kathuri Nyaga and registered in 1993 and 1994. He claimed that when buying parcel 3182 he also bought a portion measuring 20ft by 108ft providing access to the main road, which was to form part of parcel 3182. In October 2018 he discovered from the register, a sketch map and Ndagani Registration Sheet No. 15 that the portion had been marked as a road of access without his knowledge or permission. The Land Registrar and District Surveyor declined to make changes absent a court order. The court framed a single issue: whether the plaintiff was entitled to the orders sought in the plaint. Mr. Kiongo for the Attorney General, representing all four defendants, did not oppose the claim. The court found the creation of the access road irregular and unlawful and granted judgment in the plaintiff's favour: a declaration of nullity ab initio, re-survey and amalgamation of the 20ft by 108ft portion with parcel 3182, rectification of the register, recall of the title deed and issuance of a new title, and rectification of Ndagani Registration Map Sheet No. 15. However, costs were refused against the defendants because, as unopposing public officers, they had saved the court's judicial time.

Key legal issues

#
01

Whether the unilateral creation of a road of access over the plaintiff's land parcel was lawful

Holding

It was irregular and unlawful, entitling the plaintiff to the declaratory and rectification orders sought

Reasoning

The plaintiff, registered owner of Karingani/Ndagani/3182 and 3183 since 1993/1994, purchased a 20ft by 108ft portion leading to the main road which was to form part of parcel 3182. Discovery in 2018 that the portion was marked on Ndagani Registration Sheet No. 15 as a road of access prompted the claim. The defendants, through the Attorney General, did not oppose the claim, and the court found the creation of the access road irregular and unlawful and granted the substantive reliefs.

p. 3

Legal principles established

#
  • A demarcation creating a road of access over a registered owner's land without permission is irregular and unlawful and null and void ab initio

Court orders

#
  1. 1.Declaration that the demarcation and creating of a road of access over the plaintiff's portion of land measuring 20ft by 108ft, which ought to be part of parcel Karingani/Ndagani/3182, without the plaintiff's permission is unlawful, illegal and null and void ab initio
  2. 2.The 1st, 2nd and 3rd defendants to re-survey the said portion measuring 20ft by 108ft and incorporate, consolidate and/or amalgamate it with parcel Karingani/Ndagani/3182
  3. 3.The 1st and 3rd defendants to rectify the register for parcel Karingani/Ndagani/3182 to reflect the correct acreage/hectares after the amalgamation
  4. 4.The 1st and 3rd defendants to recall the title deed for parcel Karingani/Ndagani/3182 and issue the plaintiff a new title deed reflecting the changes and correct acreage
  5. 5.Rectification and/or amendment of Ndagani Registration Map Sheet No. 15 and/or any other map sheet showing the plaintiff's parcel and the correct acreage
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel registration, demarcation and rectification (not expressly cited in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bernard Mbae Mucheke v Land Registrar Tharaka Nithi District & 3 others [2019] KEELC 3452 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3452/eng@2019-05-07

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