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ELCDismissedNot stated in the judgment (Notice of Motion dated 5th November 2021)· [2022] KEELC 1797 (KLR)

Alexander Kiplimo Sego v Sub County Administrator Nandi East Sub County, Ministry of Roads and Infrastructure - Nandi County, County Government of Nandi, County Physical Planner-Nandi County, County Land Registrar - Nandi County, County Land Surveyor Nandi County & Cyrilus Kipkemboi Kirui (Environment & Land Case E003 of 2021) [2022] KEELC 1797 (KLR)

Environment and Land Court
31 January 2022
MMM. N. Mwanyale
2,227 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Nandi landowner failed to block a public road through his plot because the road easement was registered on his title and overrides his ownership rights.

What this practically means

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Executive summary

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The Applicant, grantee of letters of administration ad litem for the estate of Tirop son of Kiplagat, registered proprietor of NANDI/LESSOS/462, sought injunctive orders restraining the Respondents - including the County Government of Nandi - from entering, surveying, opening or dealing with the suit property, alleging trespass on 25th October 2021 to survey a purported access road. He relied on Giella v Cassman Brown, Mrao and Nguruman. The Respondents, through Jonah Biwott, Chief Officer for Roads and Infrastructure of the 3rd Respondent, explained that a 6.6 metre public road passes through the property, appearing on the map and on the Certificate of Official Search, reserved to give the public access to Tigtiyo Dispensary, schools and a church, and that the road predated adjudication and was never alienated to the estate. They also challenged the Applicant's locus for suing in his own name. The court found that the Certificate of Official Search records the 6.6 metre road as an easement; under Sections 2, 25, 28 and 29 of the Land Registration Act and Section 2 of the Land Act, easements override the proprietor's rights and the proprietor is deemed to have notice of register entries. The public cannot be barred from the road. Applying Nguruman, the Applicant failed to demonstrate a prima facie case since no right was threatened with violation, so the remaining Giella limbs fell away. The application was dismissed with costs to the 3rd Respondent and the interim orders of 11.11.2021 were discharged.

Key legal issues

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01

Whether a 6.6 metre road reserve over the suit property is an easement overriding the proprietor's rights

Holding

Yes; the road appears on the Certificate of Official Search as an easement, and the Applicant's rights are subject to it

Reasoning

The Certificate of Official Search filed by both parties records that 'A 6.6 Metre road passes through this plot'. Section 2 of the Land Act defines an easement, and under Section 28 of the Land Registration Act easements need not be registered, though here it was registered. Section 25 makes the proprietor's rights subject to easements, and Section 29 deems the proprietor to have notice of register entries. The road existed before adjudication.

p. 4
02

Whether the Applicant established a prima facie case for injunction

Holding

No; the road is a public road and no proprietary right was threatened with violation

Reasoning

Applying Nguruman, the court examines whether a right has been threatened with violation without holding a mini trial. Here the 3rd Respondent was exercising its statutory mandate to open a duly registered easement for public access to public utilities. Since no violation of any right was shown, no prima facie case was established and the remaining Giella limbs fell away.

p. 5

Legal principles established

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  • Rights of a registered proprietor are subject to easements and overriding interests noted in the register
  • A proprietor is deemed to have notice of every entry in the register at the time of acquisition
  • If no prima facie case is established, the remaining Giella limbs need not be considered
  • The public cannot be barred from using a public access road reserved over private land

Court orders

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  1. 1.The application dated 5th November 2021 is dismissed with costs to the 3rd Respondent
  2. 2.The interim orders issued on 11.11.2021 are discharged

Authorities

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Legislation

  • Land Registration ActSections 2, 25, 28, 29
  • Land ActSection 2 (definition of easement)

Cases cited (6)

  • Kitamaiyu Limited vs County Government - Kiambu and another
    2018 eKLR
  • Giella vs Cassman Brown
  • Mrao Limited
  • Nguruman Limited
  • Kenya Power & Lighting Co. Ltd v Mosiara Trading Company Ltd
    [2016] eKLR
  • Kenya Commercial Finance Limited vs Afraha Education Society
    (2001) Vol 1 E.A 86
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land known as NANDI/LESSOS/462 (specific statutory provision not stated 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, "Alexander Kiplimo Sego v Sub County Administrator Nandi East Sub County, Ministry of Roads and Infrastructure - Nandi County, County Government of Nandi, County Physical Planner-Nandi County, County Land Registrar - Nandi County, County Land Surveyor Nandi County & Cyrilus Kipkemboi Kirui (Environment & Land Case E003 of 2021) [2022] KEELC 1797 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 5th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1797/eng@2022-01-31

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