Lemein v Nabaala; Mutiri & 11 others (Interested Parties) (Enviromental and Land Originating Summons 1 of 2021) [2026] KEELC 567 (KLR)

The plaintiff's claim rested on long use, engaging Section 32 of the Limitation of Actions Act requiring peaceable, open enjoyment without interruption for 20 years. He testified alone, called no independent witnesses, produced no historical photographs or physical evidence of use, and did not call the District Surveyor, Land Registrar, KWS, KFS or the interested parties. Mere allegations are not evidence at the balance-of-probabilities standard.

The plaintiff urged the court to register the 9-metre access road in his name. The court held that public access roads are created through legal mechanisms under the Public Roads and Roads of Access Act and the Land Act, involving the Road Board and notification of affected landowners. An individual cannot be registered as proprietor of such a road, as that would privatise a public right of way.

Sections 27 and 28 of Cap 300 (repealed), now mirrored in Section 25 of the Land Registration Act, vest absolute ownership in the registered proprietor, subject only to overriding interests including rights of way under Section 28(c)/Section 30(a). A party alleging such an overriding interest bears the evidential burden of proving its existence; the plaintiff discharged none of that burden.

The court applied the statutory discretion that costs are ordinarily awarded to the successful litigant. Having dismissed the Originating Summons entirely, the defendant as the successful party was awarded the costs of the suit.