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ELCDismissedELC Case No. 300 of 2013· [2019] KEELC 4391 (KLR)

Joshua Onzere Kijedi v Isaac Lisaliza & 2 others [2019] KEELC 4391 (KLR)

Environment and Land Court
27 February 2019
NMN.A. Matheka
798 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner who blocks a mapped access road on his property lost in court: Kenyan survey records showing the road prevail over his objections.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of parcels South Kabras/Shamberere/2664 and 2665, sued the Land Registrar, District Surveyor and Isaac Lisaliza alleging that on or about 25 April 2013 the defendants encroached on parcel 2664 and opened a road of access without his consent, cutting down trees. He sought a permanent injunction restraining the opening of the road, an order compelling the District Surveyor and Land Registrar to close the access road, and costs. The 1st defendant denied the trespass, asserting the access road was created in 1995 when the original parcel 141 was subdivided into parcels 2001 and 2002, and produced the area map, mutation forms and letters showing the plaintiff had repeatedly been asked to clear the blocked road. The court found it undisputed that the parties are registered proprietors of their respective parcels, and relied on the surveyor's report of 8 May 2013 and the 1995 maps and mutation forms to find that the access road does exist over parcels 2664 and 2665. The plaintiff failed to prove his case on a balance of probabilities and the suit was dismissed. The court found the counterclaim merited and ordered the blocked access road re-opened forthwith by uprooting the plaintiff's trees, and permanently restrained the plaintiff from interfering with it. As the parties are neighbours, no orders as to costs were made.

Key legal issues

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01

Whether the defendants trespassed on the plaintiff's parcel South Kabras/Shamberere/2664 by creating an access road without consent

Holding

No trespass was established. The access road was created in 1995 upon subdivision of the original parcel 141 and is shown on the maps, mutation forms and the surveyor's report; the plaintiff failed to prove his case.

Reasoning

The court relied on the surveyor's report dated 8 May 2013 and the 1995 maps and mutation forms showing the access road. It found the road access exists on parcels 2665 and 2664 and that the plaintiff could not disclaim it or deny involvement in its opening. On a balance of probabilities the trespass claim failed, and the counterclaim for re-opening the blocked road succeeded.

p. 2

Legal principles established

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  • A registered proprietor claiming trespass must prove the claim on a balance of probabilities; where survey records and mutation forms show an existing access road, the court will enforce it.

Court orders

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  1. 1.Suit dismissed
  2. 2.Counter-claim allowed
  3. 3.The access road used by the 1st defendant to access land parcel No. South Kabras/Shamberere/2002 through land parcels No. South Kabras/Shamberere/2664 and 2665, blocked by the plaintiff, be re-opened forthwith by uprooting all the trees planted by the plaintiff
  4. 4.The plaintiff is permanently restrained from interfering with the access road once the same is re-opened
  5. 5.No orders as to costs

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, "Joshua Onzere Kijedi v Isaac Lisaliza & 2 others [2019] KEELC 4391 (KLR)", Case Analysis (2019). ELC Case No. 300 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4391/eng@2019-02-27

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