Marina Nceece Mohamed v Micubu Karugui & another
The bottom line
#Kenya's Environment and Land Court ruled that long use of a path does not create a public road, and neighbours cannot force access through private land by self-help.
What this practically means
#Executive summary
#Key legal issues
#Existence of a public access road on the plaintiff's land
No designated public road passed through the plaintiff's parcel; the existing road was an unauthorised short cut not reflected on the registry index map
The sub-county surveyor's report, adopted by consent, stated the road was a short cut of about 35 metres not reflected on the registry index map, and that the designated road reserve was occupied by structures. The defendants produced no expert evidence from surveyors, adjudication officers or physical planners to displace this report, and the makers of their documents were not called to testify.
Whether the defendants' self-help in unblocking the road was justified
The defendants were not justified; they took the law into their own hands instead of invoking statutory procedures
The court held that the duty to restore roads of access is not bestowed on private persons or the 2nd defendant, a public officer bound by Articles 10 and 236 of the Constitution. An application under sections 9 and 10 of the Public Roads of Access Act or an access order under section 140 of the Land Act was never made. Self-help was contrary to the rule of law.
Burden of proving a public right of way
The onus lay on the defendants, who pleaded the existence of a public road, to prove it by calling expert officers
The court held the defendants were not experts in survey and land adjudication and could not attest whether the road was public. They should have called the physical planner, public health officer, roads engineer and land surveyor. Mere assertion of long existence was insufficient, and the details of the road were not pleaded as to width and length.
Acquisition of easement by long user
Long and uninterrupted use cannot create an easement by presumption of grant under section 98(7) of the Land Registration Act
Relying on section 98(7) of the Land Registration Act and Nyanchama Kimaiti, the court held that a registry index map carries great weight in determining whether a road passes through a parcel, and long user confers no prescriptive right of way.
Legal principles established
#- A registered owner is entitled to legal protection by way of permanent injunction against trespassers
- No easement or right in the nature of an easement can be acquired by presumption of grant from long and uninterrupted use
- Parties cannot take the law into their own hands to open an access road without confirmation from relevant government officers
- An Assistant County Commissioner has no power to create or determine a public road on private land
Court orders
#- 1.Suit proved to the required standard and allowed
- 2.Sub-County Land Surveyor directed to implement and re-establish the access road as per survey report dated 26.7.2019
- 3.Any structures on the said access road to be removed under supervision of the land surveyor and land registrar at the owner's cost within 30 days
- 4.Costs to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution / ELC Act); not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marina Nceece Mohamed v Micubu Karugui & another", Case Analysis (2022). Environment & Land Case 208 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14709/eng@2022-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.