Patricia Lois Muchiri & 6 others v Board of Management, Buruburu Girls Secondary School & 4 others [2019] KEELC 3680 (KLR)
The bottom line
#Buruburu property owners lost their bid for access over school land because they never proved the disputed strip was a designated road reserve in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the disputed strip on Nairobi Block 76/972 is a public road or road of access serving the Plaintiffs' estate
It is not; the Plaintiffs failed to prove the existence of a designated public road or road reserve over the disputed strip
The court examined survey plans, the RIM and the Buruburu Structure Plan, none of which showed a road over the disputed strip. The survey plan F/R 361/72 did not show a road abutting the estate plots, and the amended RIM of 14/4/2011 showed only a narrow strip opening into Rabai Road. No evidence showed the strip was designated a road reserve after 1978 or that land was excised to create an access road.
Whether the Plaintiffs acquired a right of way under the Public Roads and Roads of Access Act
No; the statutory procedure for creating a road of access was never applied or followed
Section 9 requires application to the District Board, Section 10 requires notification of the affected landowner, and the resulting order must be registered against the affected land. The Plaintiffs led no evidence that the 7th Plaintiff applied for such a road or that the procedure was followed, so no enforceable right of access arose.
Whether the allotment and lease of the Suit Property to the Permanent Secretary to the Treasury was illegal
No; the land was unalienated government land and the Commissioner of Lands lawfully allotted and leased it
Under Section 2 of the repealed Government Lands Act, unalienated government land is land not leased nor subject to a letter of allotment. Section 3 empowers the Commissioner of Lands to deal with such land. Since no public road was proved, the allotment of 17/1/2011 and the lease of Nairobi/Block 76/972 were proper.
Whether the subdivision approvals for the 7th Plaintiff's land created an access through the disputed land
No; the approvals did not address the access road and the authorities failed to ensure provision of access
The development permission under the Physical Planning Act related to subdividing parcel 895 and contained conditions about a cul-de-sac and truncation, but no evidence showed land was surrendered for access or that the Chief Engineer of Roads was consulted under Section 32. The court faulted the statutory bodies for approving the subdivision without ensuring access provision.
Legal principles established
#- A party claiming a road of access must prove that the statutory procedure for creating roads under the Public Roads and Roads of Access Act was followed
- A claim of a right of access must be proved on a balance of probabilities; approval of a subdivision does not of itself create a road of access over third-party or public land
Court orders
#- 1.ELC No. 514 of 2010 is dismissed with costs to the 1st Defendant
- 2.Costs are declined to the 2nd to 5th Defendants
- 3.The Plaintiff's claim in ELC No. 251 of 2010 is dismissed with costs to the 1st Defendant
- 4.The Defendant's counterclaim in ELC No. 251 of 2010 is dismissed with costs to the Plaintiff in that case
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes (suit for declaration and injunction relating to land, L.R. No. 76/972)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patricia Lois Muchiri & 6 others v Board of Management, Buruburu Girls Secondary School & 4 others [2019] KEELC 3680 (KLR)", Case Analysis (2019). ELC. CIVIL SUIT NO. 514 OF 2010 (Consolidated with ELC Civil Suit No. 251 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3680/eng@2019-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.