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ELCAllowedNot stated in judgment (ELC suit at Eldoret)· [2026] KEELC 2262 (KLR)

Kunani (Suing as the legal representatives & administrator of the Estate of the Late Wilson Yego) v Yego (Land Case E055 of 2024) [2026] KEELC 2262 (KLR)

Environment and Land Court
23 April 2026
CYC. K. Yano
2,772 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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An Eldoret court ordered a landowner to vacate a public access road he had fenced and planted crops on, ruling such obstruction is unlawful.

What this practically means

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Executive summary

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This was an undefended suit before the Environment and Land Court at Eldoret in which the Plaintiff, Susan Kunani, administratrix ad litem of the estate of her late husband Wilson Tich Yego, sought a declaration that the Defendant had unlawfully encroached upon and blocked the access road serving L.R No. Pioneer/Ngeria Block 1(EATEC) 13181 and 13190, together with an order of eviction, a permanent injunction, costs and interest. The Defendant, though duly served, neither entered appearance nor filed a defence; interlocutory judgment was entered and the matter proceeded to formal proof, where the Plaintiff testified alone and produced ten exhibits including title deeds, a death certificate, a limited grant ad litem, a survey map (PEXb8) and photographs. The court framed two issues: whether the suit and prayers were merited, and who should bear costs. Applying the four Re Ellenborough Park characteristics of an easement as set out in Lemein vs Nabaala, the court found the survey map showed no dominant or servient tenement; the disputed road was a public road set apart for the Plaintiff and other residents. Following the Court of Appeal's decision in Dellian Langata Limited, the court held the Defendant's fencing and cultivation of the road was unlawful. All prayers were granted, including eviction and a permanent injunction, with liberty to involve the Sub-County Land Surveyor to re-establish the road on default. Costs and interest were awarded to the Plaintiff under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the Defendant unlawfully encroached upon and blocked the access road serving the Plaintiff's suit parcels

Holding

The suit is merited; the Defendant has unlawfully encroached on, fenced and cultivated a public access road, and must vacate it and cease activities thereon.

Reasoning

The Survey Map (PEXb8) showed the disputed road does not pass through the Defendant's land, so there is no dominant or servient tenement and no easement; rather it is a public road set apart for the Plaintiff and other residents. Photographs showed the Defendant fenced and planted crops on it. Relying on Dellian Langata, the court held the Defendant's occupation and use of the public road was unlawful and infringed the Plaintiff's right of access.

p. 5
02

Whether an injunction should issue

Holding

A permanent injunction is granted restraining the Defendant from interfering with the access road/easement.

Reasoning

The Plaintiff's access to the suit properties was impeded by the Defendant's fence and crops. Denial of access would allow the Defendant to continue illegal acts on a road that belongs to no private person. The court was satisfied there was merit in the prayer for injunction, on the unchallenged evidence and the principles in Giella vs Cassman Brown cited by counsel.

p. 5
03

Who bears the costs of the suit

Holding

Costs of the suit plus interest are awarded to the Plaintiff.

Reasoning

Guided by section 27 of the Civil Procedure Act, costs are at the court's discretion and follow the event. The Plaintiff is the successful litigant and is therefore awarded costs with interest.

p. 6

Legal principles established

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  • Easements and rights of way are overriding interests under section 28 of the Land Registration Act and need not be noted on the register
  • A public road set apart for use by the public cannot be appropriated by a private person, and interference with it is unlawful
  • Costs follow the event and are ordinarily awarded to the successful litigant under section 27 of the Civil Procedure Act

Court orders

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  1. 1.A declaration that the Defendant has unlawfully/unprocedurally encroached/interfered and/or blocked the access leading to the Plaintiff's land L.R No. Pioneer/Ngeria Block 1(EATEC) 13181 and 13190, detrimental to the Plaintiff's rights to user/easement
  2. 2.An order of eviction forthwith to remove the Defendant, his agents, servants and/or employer from the access road leading to the suit parcels
  3. 3.A permanent injunction restraining the Defendant and anybody claiming through him from entering, encroaching into, wasting, damaging, disposing of or interfering with the subject access road/easement
  4. 4.The Plaintiff shall have the costs of the suit and interest
  5. 5.Fencing structures and crops on the public road shall be removed forthwith; failing which the Plaintiff may involve the Sub-County Land Surveyor to re-establish the public road per PEXb8

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land ActSection 2
  • Land Registration ActSection 28 (including 28(b))
  • Civil Procedure ActSection 27

Cases cited (5)

  • Majid vs Sisters for Justice NGO & 3 Others
    (Environment & Land Case 197 of 2020)(2024) KEELC 974 (KLR)
  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Lemein vs Nabaala; Mutiri & 11 others (Interested Parties)
    (Environmental and Land Originating Summons 1 of 2021) [2026] KEELC 567 (KLR)
  • Re Ellenborough Park
    (1955) 3 All ER 667, (1956) Ch. 13
  • Dellian Langata Limited vs Symon Thuo Muhia, Mary Njoki Thuo, Agricultural Finance Corporation, Nairobi City Council & Council of Legal Education
    (2018) KECA 859 (KLR)
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (suit concerning land; Article 40 property rights pleaded)

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, "Kunani (Suing as the legal representatives & administrator of the Estate of the Late Wilson Yego) v Yego (Land Case E055 of 2024) [2026] KEELC 2262 (KLR)", Case Analysis (2026). Not stated in judgment (ELC suit at Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2262/eng@2026-04-23

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