Eric Kiprotich Soi & another v John Matere Keriri & another [2021] KEELC 2329 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicants met the Giella v Cassman Brown threshold for a temporary injunction
The applicants established a sufficient case for interim preservation; the status quo should be maintained pending trial
Applying Giella v Cassman Brown and Mrao Ltd v First American Bank on prima facie cases, the court found the applicants had made out a case warranting interim orders. The respondents did not controvert the applicants' averments of development since 2014 and did not show what steps they had taken if the land was an access road, so the balance favoured preserving the status quo.
Whether the suit property is a public road or a road of access
On the material before the court, there is no recognized public road of access through the suit property; proof of an application under sections 8 and 9 of the Public Roads and Roads Access Act is a matter for trial
Relying on Dellian Langata Ltd v Symon Thuo Muhia, the court distinguished a public road (set apart and designated) from a road of access (private usage following an application). No application under sections 8 and 9 of the Act was shown to have been made to create a public road on the applicant's property, so the disputed strip could not be deemed a public road at the interlocutory stage.
Whether the respondents' application to set aside the ex parte interim order should be allowed
The application dated 13th November 2020 failed because the applicants merited the interim orders
Having found the applicants entitled to the injunction, the court saw no basis to set aside the ex parte order of 14th April 2020. The respondents had not controverted the applicants' evidence of developments since 2014 and had not explained their inaction if the strip was an access road.
Legal principles established
#- A distinction exists between a public road and a road of access; a public road must be set apart and designated as such, while a road of access connotes private usage arising from an application by a party.
- Evidence that an application was made under sections 8 and 9 of the Public Roads and Roads Access Act is required to establish creation of a public road over private land.
Court orders
#- 1.A temporary injunction restraining the respondents, their agents and/or servants from offering for sale, receiving monies or transferring or dealing with the applicant's parcel of land known as LR No 2327/28/155 (original) LR No 2327/28/2 pending the hearing and determination of the suit
- 2.The notice of motion dated 13th November 2020 dismissed with no orders as to costs
- 3.Costs of the notice of motion dated 8th April 2020 to abide the outcome of the main suit
- Jurisdiction invoked
- Order 37 rule 7(1) and (2) and Order 40 rule 7 and Order 51 rule 1 of the Civil Procedure Rules; section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eric Kiprotich Soi & another v John Matere Keriri & another [2021] KEELC 2329 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2329/eng@2021-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.