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ELCAllowedNot stated in judgment· [2021] KEELC 2954 (KLR)

Elias Okendo Nyamari & 2 others v Kisii County Government [2021] KEELC 2954 (KLR)

Environment and Land Court
26 May 2021
541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court stopped Kisii County from digging a road through private land, confirming that public road projects must follow compulsory acquisition and compensate landowners.

What this practically means

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Executive summary

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The Plaintiffs sued the County Government of Kisii, alleging that the Defendant had, without following the regulations governing compulsory acquisition and compensation, created a road across their land parcels L.R No. Bassi/Boitangare/888, 2182 and 2009, destroying trees and crops. They sought a permanent injunction restraining the Defendant from creating a new road through the suit properties without due process. The Defendant entered appearance on 27 September 2016 but never filed a defence. At a mention on 4 May 2017, the court directed the County Land Registrar and County Surveyor, Kisii to visit the suit properties and verify the position of the access road, with a report to be filed within 60 days. The joint report dated 28 July 2017 found that the road excavated by the County Government of Kisii ran right through the disputed parcels and not along the position shown on the map for Boitangare registration section. Parties were directed to file comments on the report; only the Plaintiffs did so. On 26 May 2021, Onyango J adopted the surveyor's report as the judgment of the court, finding it conclusively settled the issues in dispute. Judgment was entered for the Plaintiffs. The court ordered that excavation of the road follow the dimensions in the map, that any further excavation not in conformity with the map cease forthwith, and issued a permanent injunction restraining the Defendant and its agents from creating a new road through the suit parcels without following the compulsory acquisition and compensation procedure. Costs were awarded to the Plaintiffs against the Defendant.

Key legal issues

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01

Location of the excavated access road relative to the registered map

Holding

The road excavated by the Defendant passes through the Plaintiffs' parcels of land and not along the position provided in the map for Boitangare registration section.

Reasoning

The court directed the County Land Registrar and County Surveyor to visit the suit properties and verify the position of the access road. Their report of 28 July 2017 found that the road excavated by the County Government of Kisii ran right through the disputed parcels rather than along the mapped road. The report was unchallenged in substance, as only the Plaintiffs filed comments, and the court found it categorically settled the dispute.

p. 1
02

Entitlement to permanent injunction against unacquired road works

Holding

The Plaintiffs are granted a permanent injunction restraining the Defendant from creating a new road through the suit parcels without following the compulsory acquisition and compensation procedure.

Reasoning

Since the surveyor's report confirmed the road was excavated through the Plaintiffs' land contrary to the map, and the Defendant never filed a defence, the court entered judgment for the Plaintiffs and issued a permanent injunction requiring any new road to conform to the map and the laid-down compulsory acquisition and compensation process.

p. 2

Legal principles established

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  • A court-ordered surveyor's report that conclusively settles the issues in dispute may be adopted as the judgment of the court.

Court orders

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  1. 1.Adoption of the report of the Surveyor in Charge, Kisii County as the judgment of the court
  2. 2.Excavation of the road to follow the dimensions provided in the map for Boitangare registration section; any further excavation not in conformity with the map to cease forthwith
  3. 3.Permanent injunction restraining the Defendants, its agents, servants, employees or anyone acting on its behalf from creating a new road through land parcels Bassi/Boitangare/1888, 2182 and 2009 without following the laid down procedure for compulsory acquisition and compensation
  4. 4.Costs of the suit to be borne by the Defendant
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels Bassi/Boitangare/888, 2182 and 2009 (statutory basis not expressly cited in the judgment)

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, "Elias Okendo Nyamari & 2 others v Kisii County Government [2021] KEELC 2954 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2954/eng@2021-05-26

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