Abdalla Ali Nassoro v Wycliff Lukio & another [2021] KEELC 3741 (KLR)
The bottom line
#A Mombasa landowner lost his appeal and must tear down a wall built on a public access road within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st respondent had locus standi to institute the suit without his wife's consent
The 1st respondent had locus standi; Section 93(3) and (4) of the Land Registration Act applies only to dispositions of land, and no disposition was in issue; any owner may sue to protect access to his land, and any person may sue on behalf of the public over a public road
The court analysed Section 93(3) and (4) of the Land Registration Act and the definition of disposition in Section 2, concluding spousal consent is needed only for dispositions such as sale, charge or transfer. The claim was an encroachment on an access road, not a disposition. The road was public, so any person could sue in the public interest. The objection was dismissed as a red herring.
Whether the appellant encroached on the access road
Encroachment was established; the surveyor's report was uncontroverted and the appellant conceded in cross-examination that he had no document disputing it
The surveyor's report showed the appellant's wall encroached approximately 0.50 metres into the road. The appellant adduced no contrary document and appeared to concede encroachment. The court held the existence of an alternative access or the 2nd respondent's drainage was immaterial; the appellant's obligation was to build within his plot boundaries.
Whether the Homescope Properties authority on public versus private roads applied
Distinguished; that case concerned whether a road was public or private, whereas here the existence of the road was not disputed and the issue was encroachment
The court held the factual matrix in Homescope Properties differed: there the dispute was over the public or private character of the road, whereas here the existence of the road was undisputed and the surveyor's report confirmed it. The authorities relied on by the appellant therefore did not assist.
Whether the 2nd respondent's regulatory inaction was culpable
The 2nd respondent, as a regulatory body, ought to have intervened upon complaints and its inaction was inexcusable
Despite being duly informed of the construction on the road, the 2nd respondent took no action. The court condemned this dereliction and reflected it in the costs order, making the 2nd respondent jointly and/or severally liable with the appellant for trial costs.
Legal principles established
#- Any owner or joint owner of land may sue to protect access to his land, and spousal consent under Section 93 of the Land Registration Act is required only for dispositions, not for suits to protect access
- A road open to the public may be the subject of suit by any person on behalf of the public interest, regardless of ownership of adjacent land
- A landowner must build within his boundaries and cannot justify encroaching on a road by pointing to another party's encroachment or an alternative access
Court orders
#- 1.Appeal dismissed in its entirety and the judgment of the trial court fully affirmed
- 2.Appellant ordered to remove the impugned wall from the road reserve within 30 days and ensure no part of it encroaches on the road
- 3.If the appellant fails to remove the wall within 30 days, the 2nd respondent ordered to pull it down, with the costs thereof shouldered by the appellant
- 4.Costs before the trial court to be paid jointly and/or severally by the appellant and the 2nd respondent
- 5.Appellant to pay the costs of this appeal to the 1st respondent; no order of costs on the appeal in favour of or against the 2nd respondent
- 6.County Government of Mombasa declared the entity now responsible for the obligations imposed on the 2nd respondent
- On appeal from
- Chief Magistrate's Court (Magistrates' Court), Mombasa
- CMCC Case No. 907 of 2010
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' courts
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdalla Ali Nassoro v Wycliff Lukio & another [2021] KEELC 3741 (KLR)", Case Analysis (2021). Not stated in the extract (Memorandum of Appeal filed 7 December 2018 against CMCC Case No. 907 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3741/eng@2021-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.