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ELCPartially AllowedKisumu ELC Civil Suit (Plaint dated 8th March 2023)

Adero & another v Kisumu County Director of Surveys & 3 others; Miruka & another (Interested Parties) (Environment and Land Case E004 of 2023) [2025] KEELC 6639 (KLR)

Environment and Land Court
2 October 2025
3,103 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kisumu court stopped surveyors from re-opening an access road that had already been opened, ruling the directive unlawful and discriminatory.

What this practically means

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Executive summary

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The Plaintiffs, father and son, were registered owners of Kisumu/Dago/120 (now 5370), 121 and 122. They sued upon learning that the 1st Defendant's surveyors planned to visit the land to peg out the alignment of an access road said to traverse their parcels, claiming the planned action was unlawful, discriminatory and unreasonable and seeking a permanent injunction and damages for trespass. The 3rd and 4th Defendants (Attorney General and Land Registrar) filed a defence denying any wrongdoing; no defence was filed for the 1st and 2nd Defendants, who added no evidence. Wellington Odhiambo Miruka and Amos Otieno Miruka were joined as Interested Parties, asserting ownership of landlocked parcel Kisumu/Dago/115 and that the access road, though opened on paper, had not been opened on the ground. Both sides relied on the Land Registrar's ground report of 20th January 2021, which recorded that the access road was opened on 24th November 2020 and actually provided for. The court framed three issues and held the letter of 6th December 2022 unlawful and discriminatory: it sought to open an already-opened road, omitted affected parcels, and was instigated by Interested Parties who had sold parcel 115 and therefore had no locus standi. Judgment was entered for the Plaintiffs against the 1st Defendant only, with a permanent injunction and costs with interest at court rates. Damages for trespass were refused, trespass not being proved, and no cause of action was disclosed against the 2nd, 3rd and 4th Defendants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether or not the Defendants' letter dated 6th December, 2022 was unlawful, discriminatory and unreasonable and irregular
  2. 2.whether or not the Plaintiffs are entitled to the relief sought
  3. 3.costs of the suit

Key legal issues

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01

Legality of the letter dated 6th December 2022 directing surveyors to peg out the access road

Holding

The letter was unlawful and discriminatory as the road had already been opened on 24th November 2020 and provided for per the Land Registrar's ground report, and it omitted affected parcels

Reasoning

The Land Registrar's report of 20th January 2021, relied on by both sides, confirmed the alternative access road was opened on 24th November 2020 and actually provided for. The only recommendation was re-amendment of the RIM. The letter of 6th December 2022 omitted proprietors of affected parcels and sought to open an already-opened road at the instance of parties without proprietary interest.

p. 6
02

Entitlement to permanent injunction

Holding

Granted only against the 1st Defendant; Plaintiffs' ownership was undisputed and their Article 40 property rights required protection

Reasoning

The Plaintiffs established proprietary interest in the three parcels, which was undisputed. The court found the planned pegging exercise unlawful, so a permanent injunction was merited against the 1st Defendant. However, no cause of action was disclosed against the 2nd, 3rd and 4th Defendants since the 2nd Defendant had opened the road and the 3rd took no action on the letter.

03

Damages for trespass

Holding

Refused as trespass was not proved

Reasoning

The relief of damages for trespass required proof of unlawful entry by the Defendants onto the suit lands. The complaint related only to a planned visit to peg out a road alignment; no evidence of actual entry was adduced, so the head of damages failed.

p. 7

Legal principles established

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  • A planned administrative action to reopen a road of access that has already been opened and provided for, and which does not involve all affected parcels, is unlawful and discriminatory
  • Where interested parties have sold the land to which their complaint relates, they lack locus standi to instigate administrative action over it

Court orders

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  1. 1.An order of permanent injunction restraining the 1st Defendant by themselves or agents or their officers or any person acting under their authority from purporting to peg out the alignment of the section of the access road that serves the Plaintiffs' land parcel numbers Kisumu/Dago/121, Kisumu/Dago/122 and Kisumu/Dago/120 (now Kisumu/Dago/5370)
  2. 2.Costs of the suit and interest thereon at court rates, entered against the 1st Defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Article 40 of the Constitution of Kenya 2010 (right to property) invoked in the claim

Relief refused

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Damages for trespass to land

Trespass was not proved; no evidence of unlawful entry by the Defendants onto the suit lands

p. 7

Relief against the 2nd, 3rd and 4th Defendants

No evidence of their role in the planned pegging; the 2nd Defendant opened the road and prepared a report the Plaintiffs agreed with

p. 4

Costs

Costs of the suit awarded to the Plaintiffs against the 1st Defendant with interest thereon at court rates

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that to the extent that the letter dated 6th December 2022 did not involve all the parcels affected by the dispute and to the extent that the said letter purported to invite parties for an intended exercise of opening a road that had already been opened, was unlawful and discriminatory.
p. 6Unlawful and discriminatory administrative action
An order of permanent injunction restraining the 1st Defendant by themselves or agents or their officers or any person acting under their authority from purporting to peg out the alignment of the section of the access road that serves the Plaintiffs' land parcel numbers Kisumu/Dago/121, Kisumu/Dago/122 and Kisumu/Dago/120 (now Kisumu/Dago/5370).
p. 2Final orders - permanent injunction against the 1st Defendant
Regarding the prayer for damages for trespass, trespass was not been proved as no evidence was adduced of unlawful entry of the Defendants onto the suit lands.
p. 7Failure to prove trespass
No cause of action was disclosed against the 2nd, 3rd and 4th defendants.
p. 4No cause of action against 2nd to 4th Defendants

Issues in the judgment

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minor

Judgment concludes injunction granted only against the 1st Defendant yet the disposition paragraph also speaks of planned actions by 'the 1st Defendants and the Interested Parties', and no separate order is made against the Interested Parties despite the finding against them

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, "Adero & another v Kisumu County Director of Surveys & 3 others; Miruka & another (Interested Parties) (Environment and Land Case E004 of 2023) [2025] KEELC 6639 (KLR)", Case Analysis (2025). Kisumu ELC Civil Suit (Plaint dated 8th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6639/eng@2025-10-02

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