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ELCDismissedOriginating Summons dated 22nd February 2021 (number not stated in judgment)· [2025] KEELC 4381 (KLR)

Damsyl Investment Limited v Director of Physical Planning, Ministry of Lands, Planning and Housing & 8 others; Gichuki & 2 others (Interested Parties) (Environment & Land Case E067 of 2021) [2025] KEELC 4381 (KLR)

Environment and Land Court
5 June 2025
7,622 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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A Nairobi landowner lost its bid for court-ordered access through a neighbour's plot because it already had an alternative route and never offered compensation.

What this practically means

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Executive summary

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The Plaintiff, registered owner of Title No. Dagoretti/Riruta/6235, filed an Originating Summons dated 22nd February 2021 under Section 140 of the Land Act seeking an access order for its landlocked property or, in the alternative, an order compelling the Defendants to create a permanent 9-metre access road by resurvey from an 18-metre road adjoining Dagoretti/Riruta/6081, plus a mandatory injunction to remove a fence and gate erected by the Interested Parties. The Plaintiff alleged that the 2011 subdivision of the mother parcel 6080 into plots 6235 and 6236 was fraudulent and breached the Physical Planning Act, and that the mutation form and cadastral approvals were forgeries. The 1st and 2nd Interested Parties, owners of plot 6236, resisted on grounds of res judicata (citing Nairobi ELC No. 345 of 2016 in which a counterclaim for access was dismissed), their registered title, and their ongoing construction of apartments. The 8th Defendant, the vendor of both plots, gave evidence that a 6-metre road was created during the subdivisions. Framing five issues, the court held the Plaintiff failed to prove the property was landlocked, as an alternative 3-metre access existed on the northern side and its inadequacy was not demonstrated; that fraud was not proved to the required higher standard, the impugned signature never being expert-examined; that no access could be imposed on plot 6236 because the Plaintiff never offered compensation and the storeyed development there would suffer greater hardship; and that the suit was not res judicata because the Section 140 claim and the subdivision's legality were never determined in the prior suit. All prayers were dismissed, with costs to the 1st and 2nd Interested Parties and no costs to the Defendants.

Key legal issues

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01

Whether the suit property is landlocked under Section 140 of the Land Act

Holding

Not proved; the Plaintiff has an alternative 3-metre access on the northern side of the plot whose inadequacy it failed to demonstrate

Reasoning

The mutation form shows an existing road on the northern side of the suit plot. The Plaintiff said little about this road, and although it argued the road did not meet Physical Planning standards, the cited Regulation 14(d) does not prescribe road sizes and no evidence established the road's dimensions. Mere dissatisfaction with a planning-compliant alternative does not amount to being landlocked.

p. 10
02

Whether the subdivision/mutation creating plots 6235 and 6236 was fraudulent

Holding

No; fraud was not proved to the required standard

Reasoning

Fraud requires proof above a balance of probabilities. The Plaintiff did not show who signed the document marked 'forgery', did not produce the allegedly forged mutation, and the owner of the mother title never impugned his own signature, which was not expert-examined. The Interested Parties, who were in the United Kingdom at the time of the transaction, could not have participated in any fraud.

p. 12
03

Whether access can be granted through L.R. No. 6236 under Section 140

Holding

No; the Plaintiff made no offer of compensation and the development on 6236 would suffer greater hardship

Reasoning

Section 140(4) and (5) require consideration of comparative hardship and permit conditions including reasonable compensation. The Plaintiff never negotiated or offered compensation. The Interested Parties had erected a perimeter fence and were constructing six storeyed floors of apartments, so an access road through their land would cause them immense loss.

p. 13
04

Whether the suit is res judicata Nairobi ELC No. 345 of 2016

Holding

No; the issues of the alleged illegality of the subdivision and of a Section 140 access order were never determined in the prior suit

Reasoning

Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties. In ELC 345 of 2016 the court found no access road through 6236 but, the owner of the mother parcel not being a party, did not determine the legality of the subdivision; nor did it consider a Section 140 easement claim. The issues here are therefore different.

p. 14

Legal principles established

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  • An owner seeking an access order under Section 140 of the Land Act must prove the land is landlocked and, where access exists but is alleged inadequate, prove that inadequacy
  • An access order under Section 140(5) may be conditioned on payment of reasonable compensation; a claimant who never offered compensation cannot compel access through a developed adjoining title
  • Fraud must be proved to a standard higher than a balance of probabilities
  • A subsequent suit on different issues (easement under Section 140 and legality of the subdivision) is not res judicata a prior suit even between the same parties

Court orders

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  1. 1.All the prayers in the Originating Summons dismissed for lack of merit
  2. 2.Costs awarded to the 1st and 2nd Interested Parties
  3. 3.No costs awarded to the Defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; suit brought under Section 140 of the Land Act, No. 6 of 2012

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Damsyl Investment Limited v Director of Physical Planning, Ministry of Lands, Planning and Housing & 8 others; Gichuki & 2 others (Interested Parties) (Environment & Land Case E067 of 2021) [2025] KEELC 4381 (KLR)", Case Analysis (2025). Originating Summons dated 22nd February 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4381/eng@2025-06-05

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