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ELCPartially AllowedNot stated in judgment (Environment and Land Court suit, Ngong)· [2020] KEELC 2297 (KLR)

Kavai Muasya & another v Augustine Mutua Sauli & 5 others [2020] KEELC 2297 (KLR)

Environment and Land Court
27 May 2020
COChristine Ochieng
1,764 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, by Notice of Motion dated 29th July 2019 brought under the Civil Procedure Act, Civil Procedure Rules and Article 40 of the Constitution, sought orders compelling the 1st to 4th Defendants to open the lawful public access road provided for in titles Ngong/Ngong/63413 and 63412 pending the hearing of the suit. They contended that the 1st and 2nd Defendants had closed the lawful access, purportedly sold part of it to the 3rd and 4th Defendants who erected structures blocking access, forcing the Plaintiffs to trespass on plot Ngong/Ngong/92262 whose owner threatened to fence it off. The 1st Defendant opposed, raising issues over the amalgamation and subdivision of the parental parcels without his family's participation. The 3rd Defendant claimed to be a bona fide purchaser for value who carried out due diligence, while the 4th Defendant, also a purchaser, said the orders sought were trial orders and that the current road was the one in use. The 5th and 6th Defendants did not oppose. The court framed a single issue: whether the Defendants should be directed to open the lawful access road pending the suit. Noting that the orders sought were of a permanent nature and would entail demolition of structures, but that the Plaintiffs had no designated access, the court, following Homescope Properties Ltd on the distinction between a public road and a road of access, directed that the status quo be maintained with parties using the recently curved-out road pending the outcome of the suit. The court further directed the suit be set down for hearing within 60 days, with costs in the cause.

Key legal issues

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01

Whether an interlocutory order should issue compelling the Defendants to open the original lawful access road pending the hearing of the suit

Holding

The court declined to order the reopening of the original access road, instead directing maintenance of the status quo using the access road recently curved out by the Plaintiffs, and directed expedited hearing

Reasoning

The court noted the Applicants sought orders of a permanent nature contained in their Plaint, which would culminate in demolition of the 3rd and 4th Defendants' structures, yet the suit had not been set down for hearing. Nonetheless, the Plaintiffs had no road of access as designated in the map at the point of subdivision. Balancing these factors, the court associated itself with the Homescope decision distinguishing public roads from roads of access and granted interim access via the recently curved road rather than mandatory reopening orders.

p. 2

Legal principles established

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  • A distinction exists between a public road and a road of access under the Public Roads and Roads of Access Act; a road of access connotes private usage linking a party to utilities such as a public road

Court orders

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  1. 1.That the obtaining status quo be maintained where the parties are directed to use the road of access that was recently curved out by the Plaintiffs pending the outcome of the suit
  2. 2.That the matter be expeditiously set down for hearing within 60 days from the date of the order
  3. 3.That costs will be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(c) & (e)
  • Civil Procedure RulesOrder 40 Rules 1, 2, 4 and 10; Order 51 Rule 1
  • Constitution of Kenya, 2010Article 40
  • Public Roads and Roads of Access ActNot specified

Cases cited (7)

  • In the matter of the estate of Veronica Njoki Wakagoto (deceased)
    (2013) eKLR
  • Alloys Nyerere Omari v Ann Kerubo Ombachi & 5 Others
    (2013) eKLR
  • Azzuri Limited v Pink Properties Limited
    (2015) eKLR
  • Kenya Anti Corruption Commission v Bhangra Limited & Another
    (2012) eKLR
  • Lawrence Mukiri v Attorney General & 4 others
    (2013) eKLR
  • Dennis Noel Mukhulo Ochwada & Another v Elizabeth Murungari Njoroge & Another
    (2018) eKLR
  • Homescope Properties Ltd & another v David Gachuki & Pamela Odera Sued as Chairman & Secretary of Karen Ngong View Estate & another
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(c) & (e) of the Civil Procedure Act; Order 40 Rules 1, 2, 4 and 10 and Order 51 Rule 1 of the Civil Procedure Rules; Article 40 of the Constitution

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, "Kavai Muasya & another v Augustine Mutua Sauli & 5 others [2020] KEELC 2297 (KLR)", Case Analysis (2020). Not stated in judgment (Environment and Land Court suit, Ngong). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2297/eng@2020-05-27

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