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ELCDismissedNyahururu ELC Case no. 270 of 2018 (appeal)· [2024] KEELC 5879 (KLR)

Kinuthia v Kimeranco Enterprises Ltd (Environment and Land Appeal 20 of 2019) [2024] KEELC 5879 (KLR)

Environment and Land Court
20 August 2024
KBK. Bor
5,434 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A landowner who claimed a disputed road was public lost because he produced no evidence proving it—so must you prove your claim.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court from the Senior Principal Magistrate's court in a land dispute over a six-metre road of access excised from Laikipia/Nyahururu/3868 during a 2013 subdivision. The Appellant, who sold parcels 10714 and 10715 to the Respondent, claimed the Respondent blocked the road with a gate and trench and fenced his parcel 3867, and sought an injunction. The Respondent counterclaimed, asserting it paid Kshs. 350,000/= for the road as a private access road and pleading trust or proprietary estoppel. The trial court dismissed both the suit and the counterclaim, finding the road was a private road of access serving only parcels 10714 to 10717. On appeal, the ELC (K. Bor J) held that no evidence was led to show the road was public: the amended RIM was not produced, the surveyor's report was not proved through its maker's testimony, and no statutory process converting private land to public land was demonstrated. The ELC Judge's interlocutory observations of 20/9/2016 that the road was public were prima facie findings that did not bind the trial court. The court affirmed the trial court's findings and dismissed the appeal with costs to the Respondent. Both the suit and the counterclaim had been dismissed below, each party bearing the other claim's costs.

Key legal issues

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01

Whether the six-metre road of access created on subdivision of parcel 3868 is a public road

Holding

It is not a public road but a private road of access intended to serve only the resultant parcels 10714 to 10717

Reasoning

The road was created by the Appellant's own subdivision in 2013 to give access to the four resultant portions. No evidence showed members of the public used it before the gate was erected, no amended RIM was produced, and no process under the Land Act converting private land to public land was proved. The Appellant therefore failed to discharge the burden of proof on a balance of probabilities.

p. 8
02

Whether the trial court erred in disregarding the surveyor's report and the ELC interlocutory ruling

Holding

The trial court was entitled to exclude the report (maker not called) and not bound by the interlocutory observations

Reasoning

The surveyor who prepared the report was not called to testify and was not cross-examined, so it had no probative value. The ELC Judge's finding that the road was public was made on an injunction application at the interlocutory stage, expressly subject to proof at trial, and therefore could not bind the trial magistrate after full evaluation of the evidence.

p. 5

Legal principles established

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  • A party asserting that a road is a public road bears the burden of leading evidence to that effect, including production of the amended RIM; absence of such evidence defeats the claim
  • Interlocutory findings of a superior court on an injunction application are prima facie only and do not bind the trial court after full hearing
  • A document not tendered in evidence or proved through the testimony of its maker, subject to cross-examination, cannot form part of the evidentiary record

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Public Road and Roads of Access ActSection 2
  • Land ActSection 9
  • Land ActSections 146 to 148

Cases cited (4)

  • Kenneth Nyaga Mwige v Austin Kiguta & 2 Others
    [2015] eKLR
  • Paul Tirimba Machogu v Rachel Moraa Mochama
    [2015] eKLR
  • Dellian Langata Limited v Symon Thuo Muhia & 4 Others
    [2018] eKLR
  • Kipkirui Arap Koskei v Philemon Kipsigei Tangus & Another
    [2015]
On appeal from
Magistrates court (Senior Principal Magistrate, Nyahururu)
Nyahururu ELC Case no. 270 of 2018
Jurisdiction invoked
First appeal from the magistrates' court to the Environment and Land Court

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, "Kinuthia v Kimeranco Enterprises Ltd (Environment and Land Appeal 20 of 2019) [2024] KEELC 5879 (KLR)", Case Analysis (2024). Nyahururu ELC Case no. 270 of 2018 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5879/eng@2024-08-20

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