Kuria & 3 others v Muriithi & another (Environment and Land Case E034 of 2025) [2026] KEELC 1941 (KLR)
The bottom line
#A Kenyan land court ordered landowners to reopen a blocked access road before trial, ruling that long-used paths can become legal easements even without registration.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 4th Plaintiff has locus standi in these proceedings
- 2.Whether the suit and/or application is fatally defective
- 3.Whether the Plaintiffs have established a prima facie case with a probability of success to warrant the grant of an interlocutory injunction
- 4.Who should bear the costs
Key legal issues
#Locus standi of the 4th Plaintiff as a beneficiary under a confirmed grant
The 4th Plaintiff's beneficial interest in the allocated portion of the suit property conferred sufficient standing; the objection to his joinder failed.
The Court distinguished legal title, which vests in personal representatives under Sections 79 and 82(a) of the Law of Succession Act, from beneficial interest. Upon confirmation of a grant under Section 71, beneficiaries' shares crystallise and a Certificate of Confirmation is a judicial determination of distribution. Where a beneficiary sues to protect his allocated share rather than to enforce a cause of action vested in the deceased, the Court may recognise his standing to avoid defeating substantive justice.
Whether the failure to amend the Notice of Motion after amending the plaint rendered the application fatally defective
The omission was procedural and did not render the application incurably defective since no substantive prejudice was shown.
The Court held that while procedural compliance matters, the touchstone is whether the omission causes prejudice or goes to jurisdiction. The amendment of the pleadings sufficiently clarified the parties before the Court, and the deceased defendant's removal did not prejudice the Respondents. The first limb of the preliminary objection, on the misjoinder of a deceased defendant, was also moot since the Amended Plaint had removed that defendant.
Whether the Plaintiffs established a prima facie case with a probability of success
A prima facie case was made out that an access road existed over the Defendants' parcels and that it had been obstructed, though the easement's duration and circumstances of creation must be proved at trial.
Applying Giella v Cassman Brown and Mrao, the Court found on the affidavits and documentary evidence that an access road ran from the main road through Parcel 184 and its subdivisions 466 and 467 to Parcel 291, that a family home and guest house exist on Parcel 291, and that the road was obstructed by tree branches and barbed wire. The Court rejected the argument that an easement can only arise by registration, holding that prescription and overriding interests are also recognised routes, but left proof of the 20-year open, peaceful user (nec vi, nec clam, nec precario) for trial.
Whether a mandatory injunction could issue at the interlocutory stage, and on irreparable harm and balance of convenience
The Court, after hesitation, granted the mandatory injunction, finding irreparable harm from loss of access to the family home and that the balance of convenience favoured the Applicants.
Citing Joseph Kaloki, Kenya Breweries v Okeyo and Sharifi Abdi Hassan, the Court noted mandatory injunctions at the interlocutory stage require special circumstances or a clear case. It reasoned that loss of access to one's home is not a purely pecuniary loss compensable in damages, that the Respondents alleged no harm from reopening the road, and that the Respondents' closure risked 'stealing a march' by creating a fait accompli. It therefore granted the injunction pending trial.
Legal principles established
#- A beneficiary whose share has crystallised upon confirmation of a grant may have locus standi to protect that allocated interest, distinct from enforcement of a cause of action vested in the deceased.
- A mandatory injunction may be granted at the interlocutory stage only in special circumstances or the clearest of cases.
- Easements may arise not only by registration but also by implication or prescription under the Limitation of Actions Act, and as overriding interests.
- A preliminary objection must raise pure points of law on assumed facts and cannot be raised where facts must be ascertained.
Court orders
#- 1.The preliminary objection raised in the notice dated 16th October 2025 is dismissed
- 2.Pending the hearing and determination of the Suit, an interlocutory injunctive Order granted directing the Defendants/Respondents, their agents, servants and/or any person claiming through or under them to forthwith open and remove all and any obstructions imposed or erected on the Access Road (measuring 5 meters in width and 97.5 meters in length or thereabouts) for ingress and egress from Land Parcel Tetu/Ihururu/291 through Parcels Tetu/Ihururu/466 and Tetu/Ihururu/467 onto the Public Road known as Ihururu-Ngoru Road
- 3.In default of the Defendants/Respondents complying within fourteen (14) days from the date of issuance of the Order, the Plaintiffs/Applicants may remove the obstructions themselves and the costs thereof be apportioned after the full trial
- 4.The implementation of the Orders is to be supervised by the Chief Muhoya Location and the Officer Commanding Station (OCS) at Nyeri Police Station
- 5.Costs of the application shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (not expressly stated in the judgment)
Relief refused
#Prayer that in default of compliance within seven (7) days the Plaintiffs do remove the obstructions with costs borne by the Defendants
The Court varied the default period to fourteen days and deferred the question of those costs to trial
Conclusive findings on the merits of the easement claim
The existence, duration and circumstances of creation of the easement require evidentiary interrogation at trial
Costs
Costs of the application shall be in the cause; the preliminary objection was dismissed but no separate costs order was made on it.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Pending the hearing and determination of the Suit herein, an interlocutory Injunctive Order be granted directing the Defendants/Respondents, their agents, servants and/ or any person claiming through or under them to forthwith open and remove all and any obstructions imposed or erected on the Access Road
Costs of the application shall be in the cause.
The Preliminary objection raised in the notice dated 16th October 2025 lacks merit and is hereby dismissed.
confirmation of grant confers upon the beneficiary a definite and enforceable beneficial interest in the allocated property
a mandatory injunction can be granted on an interlocutory application as well as at the hearing but should not normally be granted in the absence of special circumstances
The use of the easement must be shown to have been exercised in light of the maxim nec vi, nec clam, nec precario. The use must also be open and notorious, without interruption, for a duration of 20 years.
The Respondents' closure of the access road can amount to an attempt at “stealing a march” on the Applicants, where the defendants were to close the road to create a fait accompli
Issues in the judgment
#The judgment repeatedly transposes the parcel numbers of the two servient parcels in the introductory paragraphs, describing 467 as 466 and vice versa, but uses them correctly in the analysis and final orders.
The 4th Applicant's supplementary affidavit describes the access road as 27.5 metres long, while the pleadings, submissions and final orders describe it as 97.5 metres.
The decretal order varies from the prayer sought: the default compliance period was extended from seven (7) to fourteen (14) days and the costs of removal were deferred to trial rather than borne by the Defendants.
The application is described in places as a 'ruling' although the document is a judgment on both a preliminary objection and a Notice of Motion.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyaenya v Nyang’au (Environment and Land Case E010 of 2026) [2026] KEELC 5304 (KLR)[2026] KEELC 5304 (KLR)12 Aug 2026
Cite this brief
#Cite this brief
Caselaw, "Kuria & 3 others v Muriithi & another (Environment and Land Case E034 of 2025) [2026] KEELC 1941 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.