Oketch v Ochanda & 3 others
The bottom line
#A Kenyan court confirmed you can block a neighbour from fencing off a public access road, but land fraud claims fail without solid documentary proof.
What this practically means
#Executive summary
#Key legal issues
#Representation on appeal without leave under Order 9 Rule 9
Leave is not required; the advocate's instructions were exhausted at conclusion of the lower court case
The court held the mischief of Order 9 Rule 9 and 10 was to protect advocates' fees at execution stage, not to bar a litigant from engaging new counsel on appeal. Requiring leave would deny the appellant representation of choice and negate just and expeditious disposal under Section 1A of the Civil Procedure Act and Section 3 of the Environment and Land Court Act, following Tobias M. Wafubwa v Ben Butali.
Proof of trespass against the 1st respondent
Trespass was not proved; the appellant bore and failed to discharge the burden of proof
The appellant pleaded trespass in 2011, 2013 and 2014 but produced no documents in support; the water reservoir spillage was never pleaded. Pleadings are not evidence until proved. The Trial Magistrate correctly placed the evidentiary burden on the appellant, who did not discharge it, so the first ground of appeal failed.
Whether the suit property was originally 9 acres and fraudulently excised
Not proved; fraud was never particularized and the greencards were prima facie evidence of acreage
Fraud must be pleaded, particularized and proved to a higher standard; the appellant never particularized it. He admitted having no documents proving the original 9 acres, never objected at adjudication, and did not join the adjudication officer. The surveyor's measurements and greencards produced by the land registrar under Section 26 of the Land Registration Act stood as prima facie evidence.
Blocking of the public access road and the order amending the RIM
The 1st respondent's blocking of the public access road was unlawful; the Trial Magistrate erred in deeming the new road legal and ordering RIM amendment
It was indisputable that the 1st respondent blocked the public access road and created a private one on 516. Having found the blocking, the Trial Magistrate erred in legitimizing the new road by ordering RIM amendment. Any new access road had to be registered under Section 9 of the Public Roads and Roads of Access Act; the blocking also infringed Article 40(2)(b) of the Constitution.
Legal principles established
#- Order 9 Rules 9 and 10 of the Civil Procedure Rules do not apply to appeals; a party may engage new counsel on appeal without leave or notice of change
- Fraud must be pleaded, particularized and proved to a standard higher than a balance of probabilities
- A public road is set apart and designated as such and can be utilized by the public without restriction unless legally restricted; blocking it is unlawful
Court orders
#- 1.Permanent injunction restraining the 1st respondent, his agents, servants or any person acting on his behalf from blocking or ever blocking and/or fencing off the existing public access road granting access to Land Parcels Numbers Siaya/Usigu/517 and Siaya/Usigu/516
- 2.Upon service of the orders, the 1st respondent shall within 60 days remove all impediments including fences, reopen the said road and keep it open
- 3.The appellant shall have one half of the costs of this appeal
- 4.The order of the Trial Magistrate directing amendment of the RIM and deeming the new access road in 516 legal is set aside
- 5.The award of costs by the Trial Magistrate is not disturbed
- On appeal from
- Principal Magistrate's Court at Bondo
- Bondo PM ELC Case Number 59 of 2018
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court under the Environment and Land Court Act (Section 3 cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oketch v Ochanda & 3 others", Case Analysis (2022). Environment and Land Appeal E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14580/eng@2022-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.