Mwangi, Sharma & Muita (Suing as the Chairman, Vice-Chairman and Committee Member of the Runda Association) v Zaward Limited & another
The bottom line
#Kenya's Environment and Land Court ruled that Runda's contested road is public, so residents cannot wall it off or block other property owners' access.
What this practically means
#Executive summary
#Key legal issues
#Nature of the roads serving the parties' properties
The roads were public roads, not private cul-de-sacs; the Plaintiff failed to prove any application for their creation as roads of access
The court distinguished public roads from roads of access, noting a road of access requires an application by a landlocked owner. The Plaintiff produced no evidence of such application. DW2 testified a road serving more than five people becomes a public road. The 2005 Survey Plan FR 333/21, authenticated under section 32 of the Survey Act, joined the two roads.
Whether the conversion of the cul-de-sac into a through road was illegal
Not illegal; the joining resulted from the 2005 resurvey, not the 2nd Defendant's 2017 approval, and the Plaintiff did not challenge the 2005 resurvey or prove absence of public participation in it
The court found the resurvey/replanning of 2005 transformed the dead-end road into a through road. The Plaintiff never challenged the validity of that resurvey nor tendered evidence of lack of public participation. The court also held the 2010 Constitution and the Urban Areas and Cities Act 2011 could not be invoked to challenge a 2005 joining of roads.
Whether the wall built by the Plaintiff was lawful
Unlawful; the wall was an encroachment on public land
Having found the contested road was a public road for public use, the court held that building a wall across it was an encroachment on public land, as the 2nd Defendant had asserted in its letter dated July 28, 2015. The court cited George Munge v Sanjeer Pancho Sharma on the limits of resident associations' powers.
Whether the 2nd Defendant unlawfully demolished the Plaintiff's wall
The demolition was not unlawful since the wall itself was an unlawful encroachment on a public road
Because the wall was an unlawful encroachment on public land, the Plaintiff could not sustain claims based on its demolition, including the fair administrative action and security-rights complaints. The suit was dismissed in its entirety on this footing.
Legal principles established
#- A road of access is created upon application of the owner of a landlocked property to link their land to a public road, while a cul-de-sac is created to limit traffic into a cluster of homes
- A road created through resurvey, subdivision and reparcellation under the land planning framework is a public road, not a private road or road of access
- No land is deemed surveyed or resurveyed until its plan is authenticated by the Director of Surveys or an authorised government surveyor
- Resident associations should not infringe private property rights or the public's right to access or use public roads
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land, environment and planning (Article 162(2)(b) Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi, Sharma & Muita (Suing as the Chairman, Vice-Chairman and Committee Member of the Runda Association) v Zaward Limited & another", Case Analysis (2022). Environment & Land Case 1625 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15145/eng@2022-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.