Homescope Properties Limited & another v Gachuki & Odera (Sued as Chairman & Secretary Karen Ngong View Estate) & another

The court analysed the statutory definition of a public road. The road was not in existence before the Act commenced in 1920, excluding limbs (a) and (b). For limb (c), reservation for public use can only occur under section 8 by the Minister, but the road was constructed by the developers. It was also not created under section 9, so it could not be converted into a public road. No evidence of compliance with the conversion procedure existed.

The court observed that the 1920 Act did not envisage roads within planned developments and gated communities. The roads were built by developers for estate residents and maintained by them. Although surrendered to the City Council, that did not make them public roads; the Council holds titles as trustee for residents, and the estate management may manage their use for residents' benefit and security.

The survey map showed the estate roads were established for residents before the Plaintiffs' estate existed. The Plaintiffs' estate is on Ngong/Ngong/47118 in Kajiado County, and the Mutation Form and RIM show a direct access road from Ngong Road to it. All Plaintiffs' witnesses admitted an alternative access. The Plaintiffs produced no evidence that their title was intended to be accessed through the 1st Defendant's estate.

The 2nd Defendant contested jurisdiction, contending the claim should have gone to the National Environment Tribunal. The 2nd Plaintiff relied on article 162(2) of the Constitution, section 13 of the Environment and Land Court Act and section 129 of EMCA. The 2nd Defendant adduced no evidence at trial and the judgment proceeds on the merits, implying the objection was rejected.