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ELCDismissedEnvironment & Land Case 89 of 2019· [2023] KEELC 17451 (KLR)

Barmasai v Rono & 9 others

Environment and Land Court
18 May 2023
EOE. O. Obaga
1,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that decades of using a neighbour's land as a road does not make it your legal access route.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of the registered owner of parcel Uasin Gishu/Elgeyo Border/260, sued the owners of the adjacent parcel 261 and the land registry officials, seeking a declaration that an access road existed across the defendants' land, its reinstatement, rectification of the Registry Index Map, a mandatory injunction to open the road, a permanent injunction against trespass, and damages. The road had been used by the plaintiff's family since the 1960s but the defendants closed it in 2019. The 2nd to 8th defendants filed a defence and counterclaim for trespass damages of Kshs 5,000,000. The court framed two issues: whether an access road exists on the disputed area, and whether the parties are entitled to the reliefs sought. The county surveyor's court-ordered report showed no access road to parcel 260 on the RIM but a 7-metre access at the intersection of parcels 260, 261 and 242; the plaintiff's surveyor favoured the disputed area based on the settlement scheme development map. The court conducted a site visit, found the intersection area was not swampy and the 7-metre stretch usable, and held the RIM is the final authority following a development plan. It found long user did not make the disputed road official, that no damages were payable for trees on the defendants' land, and that the counterclaim was misconceived. Both the claim and counterclaim were dismissed, each party to bear own costs, with the RIM to be amended to show access at the intersection of parcels 260, 261 and 242.

Key legal issues

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01

Existence of an access road on the disputed area

Holding

No access road exists on the disputed area; the official access to parcel 260 is at the intersection of parcels 260, 261 and 242

Reasoning

The court relied on the county surveyor's report that the RIM shows no access road to parcel 260, its own site visit confirming a usable 7-metre stretch at the intersection touching the main road, and the principle that the RIM is the final authority. Long user by the plaintiff's family did not make the disputed road the official access.

p. 3
02

Entitlement to damages by the plaintiff

Holding

No special or general damages payable for trees destroyed on the defendants' land

Reasoning

The trees were planted on land belonging to the defendants; the defendants cannot be condemned to pay for what was planted on their own land, and the court found no basis for either special or general damages.

p. 4
03

Defendants' counterclaim for trespass damages

Holding

Counterclaim dismissed as misconceived

Reasoning

The defendants had permitted the plaintiff's family to access their land through the disputed area for a long period, so no trespass damages could arise.

p. 4

Legal principles established

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  • The Registry Index Map is the final authority on the position of an access road, coming after a development plan
  • Long user of a road over another's land does not justify declaring it the official access road

Court orders

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  1. 1.The plaintiff's claim is dismissed
  2. 2.The defendants' counter-claim is dismissed
  3. 3.Each party to bear their own costs
  4. 4.The Registry Index Map should be amended to show that the access road to the plaintiff's land is at the intersection of parcel Nos Uasin Gishu/Elgeyo Border/260, 261 and 242
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (dispute over access road to land parcels in Uasin Gishu County)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Barmasai v Rono & 9 others", Case Analysis (2023). Environment & Land Case 89 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17451/eng@2023-05-18

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