keelc-2023-18508

He averred that the property is situate on a well-planned area with access roads and access facilities including the National Library. 3. He contended that the 1st, 2nd and 3rd Defendants have now unlawfully erected temporary housing structures and shanties on the road reserve leading to the suit property thereby limiting his access and the access of other adjacent land owners to their respective residences .He contended that numerous complaints have been lodged with the Commissioner of Lands and the 4th Defendant on the issue of the illegal closure of the road reserve but the nuisance continues unabated. 4. He also averred that the Commissioner of Lands wrote various letters to the agents of the 4th Defendant vide letters to the Deputy Commissioner, Lang’ata Sub-County dated 18th September 2017 and the Chief Ocer, infrastructure, Roads and Public works dated 21st of November,2017 to resolve the matter but no steps have been taken to sort out the matter. 5. He contended that the 4th Defendant has condoned, encouraged or neglected its responsibilities thereby permitting the continued blockage of the road by the 1st to 3rd Defendants. 6. The 1st- 3rd Defendants failed to enter appearance and/or le defences despite being served. 7. The 4th Defendant entered appearance vide the Memorandum of Appearance dated 9th April 2018 led by Kounah & Company Advocates but failed to le a defence. It also led the notice of motion dated 8th July 2019 seeking that the 4th Defendant be struck out of the suit on the 29th July 2020, this court allowed the 4th defendant’s notice of motion. The 4th Defendant then ceased to be a party in this suit. Evidence of the Plainti 8. PW1, Willy Odira the Plainti, testied on 25th April 2022. He told the court that he has built his residence on his land known as LR No 209/16037 situated in Lang’ata. He produced a letter of allotment dated 25th June 1996, rates receipts from the Ministry of Lands and a registry index map. It was his testimony that the 1st-3rd Defendants constructed structures on a road leading to his home and as a result, he cannot access his home. 9. He stated that he reported to the Ministry of Lands who wrote a letter to Nairobi City Council whose ocers went to the site but did nothing. He further testied that he also complained to the National Land Commission and the County Government of Nairobi as well but they have done nothing to date. 10. It was also his testimony that the Defendants have also encroached on the public land leading to the National Library Services. He prayed that the public road leading to his home be restored to its state by demolishing the permanent structures erected on the road. 11. At the close of his oral testimony, the Plainti tendered nal written submissions. The Plainti ’s Submissions 12. They are dated 6th June 2022. Relying on the case of Trust Bank Limited v Paramount Universal Bank Limited & 2 others, Counsel for the Plainti submitted that since the 1Defendants neither led a defence to rebut the Plainti’s claim nor called a witness, the Plainti’s evidence is uncontroverted. He urged the court to nd that the Plainti has proved his claim that the 1st to 3rd Defendants have blocked access to his property. He relied on the case of Fredrick Otieno Obonyo v Gilbert Otieno Nyanjom & another [2018] eKLR. 13. It was also Counsel’s submission that by the 4th Defendant’s actions of allowing the 1st to 3rd Defendants to build on public roads within the city thereby blocking the Plainti’s access to his home, the 4th https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18508/eng@2023-03-16 2

page 2 of 4

Defendant is guilty of dereliction of duty. He relied on the case of Mohamed Said Shimasy v Hmaid Mahamed Abdullkadir & another [2009] eKLR. 14. Counsel also submitted that blocking the Plainti’s access to his home by erecting illegal structures on the road denies the Plainti the right to peaceful and quiet enjoyment of his property and devaluates it. 15. I have considered the pleadings and the evidence on record. I have also considered the written submissions and the authorities cited. the issues for determination are:i. Whether the 1st, 2nd and 3rd Defendants have erected illegal developments on the road reserve leading to the Plainti’s property. ii. Is the Plainti entitled to the reliefs sought? iii. Who should bear costs of this suit? 16. The Plainti’s case is that he1st, 2nd and 3rd Defendants have constructed shanties on a road reserve leading to his residential property described as LR No 209/16037. He accuses the 4th Defendant of abdicating its duty by its actions of allowing the illegal construction. The Defendants failed to enter their respective defences despite being served. 17. In the case of Kariuki Gathitu v Attorney General [2013] eKLR, the Court stated; “ It is now trite that although a party alleging a fact has the onus of proof of that fact, the opposing party is at the very least expected to le a response to those allegations of fact. Where such a party actually appears in the proceedings but neither in pleadings nor in oral evidence does he answer to those facts, then the court can only but take it that those facts are uncontested”. 18. The Plainti has proved ownership to the suit land. He also proved that there are developments erected around the road reserve leading to the suit property. The 1st, 2nd and 3rd Defendants have not justied the said developments erected on the road reserve. Their actions are therefore an interference of the plainti’s right to enjoy his property. 19. The 4th Defendant failed to justify that the developments were in compliance with the Physical and Land Use Planning Act. Thus the orders sought are for granting. 20. I nd that the Plainti’s case has not been controverted. I also nd that he has proved his case against the Defendants on a balance of probabilities. 21. Accordingly, judgment is entered for the Plainti as against the Defendants as follows:a. That a declaration is hereby issued that the shanties and structures erected on the road reserve Mugumoni Langata are illegal. b. That a declaration is hereby issued that the 1st, 2nd and 3rd Defendants have no proprietary right over the said road reserve recognizable in law. c. That an order of mandatory injunction is hereby issued directing that the 1st, 2nd and 3rd Defendants to demolish the structures erected on the said road reserve. d. That the 1st, 2nd and 3rd Defendants are hereby directed to vacate the said road reserve within sixty (60) days from the date of this judgment failure to which the Ocer Commanding Langata Police Station do oversee their eviction from the said road reserve. e. That costs of this suit be borne by the 1st, 2nd and 3rd Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18508/eng@2023-03-16 3

page 3 of 4

It is so ordered. DATED, SIGNED AND DELIVERED VIRTUARLLY AT KAJIADO THIS 16TH DAY OF MARCH 2023. ………………………. L. KOMINGOI JUDGE In the presence of:No appearance for the Plainti No appearance for the Defendants Mutisya- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18508/eng@2023-03-16 4

page 4 of 4