Mutitu v Nduguya & another

of land. They further deny that they have been in any negotiations with the Plainti with a view to providing her with access to her parcel of land. 4. The Defendants aver that the Plainti’s parcel of land has a legally known access which the Plainti uses to –date and assert that this suit is yet another attempt by the Plainti to saddle them with unnecessary costs and litigation. The Plainti ’s case. 5. At the trial herein, the Plainti called two witnesses in support of her case. 6. PW1- Jerioth Muthoni Mutitu is the Plainti herein and a farmer in Kianjogu. She told the court the land was transmitted to her name following the death of her husband. PW1 testied that they had been using the land from the year 1958 and that after the demise of her husband, the two Defendants who are her neighbours closed the access road they had been using. 7. PW1 testied that she cannot now access the land as the other side is landlocked while the lower side is marshy. It was her case that before the access was blocked, she could access her land using the access between Plot Nos. 416, 415 and 664. 8. PW2- Nathan Giothe Gathaiya is the Land Registrar Nyeri County. He told the court he was aware that two reports had been led in regard to this matter. The 1st Report compiled by R.W. Waiteri dated 23rd March 2016 concludes that the only visible access to parcel 409 is the disputed parcel. The 2nd Report prepared by Ms. S.W.Mwanzawa dated 27th September 2018 concludes that the map is clear on the access to be used for each parcel and urges that the parties use the access provided on the R.I.M. PW2 supports the ndings in the Second Report. The Defence Case 9. On hteir part, the two Defendants called one witness in support of their case. 10. DW1- Simon Thumbi Nduguya is the 1st Defendant. He told the court that the 2nd Defendant who was his brother had passed away. 11. DW1 told the court his parcel of land is No. 663 while No. 664 belongs to his now deceased brother. He told the court that the two parcels were sub-divisions of Parcel No. 410 which had been in the name of their father. DW1 further told the court that the Plainti’s parcel of land is below their own on the lower side and that the Plainti is supposed to use the lower side of her land to access the land. 12. DW1 further testied that the Plainti was until the year 2005 using their parcels of land for access before the Defendants discovered that there was no access road on their land. He told the court the access road to the Plainti’s parcel is usable but the Plainti still uses other neighbour’s parcels of land to access her own. Analysis and Determination. 13. I have carefully perused and considered the pleadings led herein, the testimonies of the witnesses as well as the evidence adduced at the trial. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocate representing the parties herein. 14. By her suit herein the Plainti urges the court to issue an order granting her reasonable access to her parcel of land known as LR. No. Thegenge/Kianjogu/409 through the creation of an easement over the Defendants’ parcels of land known as Thegenge/Kianjogu/663 and 664. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14147/eng@2024-10-17 2

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15. Those prayers arise from the Plainti’s contention that prior to the sub-division of LR. No. Thegenge/ Kianjogu/410, which belonged to the Defendants’ father, there existed an access road to the Plainti’s land which was extinguished upon sub-division thereby denying the Plainti access to her parcel of land. It is the Plainti’s case that since the Defendants caused the said parcel of land to be sub-divided into the portions now known as LR. No. Thegenge/Kianjogu/663 and 664, she has experienced great diculty in accessing her parcel of land as she no longer has direct access thereto and has been forced to use other parcels of land belonging to her neighbours. 16. On their part the Defendants did not deny having sub-dived the parcel of land known as Thegenge/ Kianjogu/410. It was however their case that upon carrying out the sub-division, and on checking with the records held at the lands oce, they realized that there was no access road running from their parcel of land to the Plainti’s parcel of land known as Thegenge/Kianjogu/409. It was the Defendants’ case that the Plainti’s parcel of land has a legally known access which the Plainti can use but she was reluctant to use the same. 17. In support of her case, the Plainti told the court that she had been using the access road from the year 1958 and that the Defendants who are her neighbours blocked the access sometime after the death of her husband. She told the court she was now unable to access the land as one side is landlocked while the lower side is marshy and unusable. It is on that account that she urges the court to grant her access to her land through the creation of an easement over the Defendants’ parcels of land. 18. From the material placed before me, LR. No. Thegenge/Kianjogu/409 was initially registered in the name of the Plainti’s husband. Following his death, the Plainti acquired the same by way of transmission. Similarly, the adjacent LR. No.Thegenge/Kianjogu/410 wsa initially in the name of the father of the Defendants. Following his death, the two brothers sub-divided the same and transferred LR. No. Thegenge/Kianjogu/663 to the 1st Defendant while LR. No. Thegenge/Kianjogu /664 was transferred to the 2nd Defendant. As fate would have it, the 2nd Defendant passed away in August 2021 and the suit as against him abated as he was not substituted in these proceedings. 19. While the crux of the Plainti’s case was her position that there previously existed an access road to her parcel of land through the Defendants’ parcels of land, there was very little that was placed before this court in support of that position. Testifying at the trial herein the Plainti told the court that prior to the sub-division, she had been given an access road between plots 415, 416 and 664 and that what is marked as a road on the south of her plot is usually ooded and therefore she cannot use it. 20. While it was conceded that the Plainti and her deceased husband had been using a portion of the land that had since been sub-divided and transferred to the 2nd Defendant to access her parcel of land, it was evident that there was no access road on the land and that the usage was out of some permission or understanding created between the Plainti’s family and the Defendants’ father. 21. Asked in cross – examination about the access road, the Plainti conrmed that in reference to the Registry Index Map for the area, there was in deed no access road from Plot Nos. 663 and 664 to her own parcel of land. From a perusal of the undated Boundary Dispute Report prepared by the Nyeri Land Registrar S.M. Mwanzawa and led herein on 27th September 2018, it was noted that the access road was created as a result of an agreement between the initial owner of parcel No. 409 and 410 since the road on the lower side of the Plainti’s land had not been cleared and was swampy. 22. That being the case I was unable to discern any intention of the parties to create a right of way that was enforceable in the manner in which the Plainti had purported to do herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14147/eng@2024-10-17 3

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23. It was also evident to me that despite the Plainti’s claim that her parcel of land had no access, that was not the factual position. In that Boundary Dispute Report led by the Land Registrar S.M. Mwanzawa aforesaid the Land Registrar concludes as follows:“ On the Map There is an access road to the Plainti’s land from the lower side but no access road through the Defendants’ land 663 and 664. The Defendants’ parcel of land 663 and 664 are accessible through the main road that runs from Gakanja Shopping Centre. Both parcels are not landlocked and their parcels access roads are well outlined on the map.” 24. From a further perusal of the said Report and the Plainti’s own testimony herein, it was clear that there was an access road to the Plainti’s land but the Plainti had an issue with using it because it would occasionally get swampy and ooded. I was unable to fathom from these circumstances why the Plainti would want to insist that the Defendants cede a portion of their land as a matter of right to rescue her from her predicament. 25. At any rate, it was clear to me that the portion of land the Plainti was claiming lay on a portion of LR. No. Thegenge/Kianjogu/664. That parcel of land was registered in the name of the 2nd Defendant who passed away in the year 2021 and was not substituted herein. The Plainti can certainly not sustain a claim against the 1st Defendant whose parcel of land is situated on a dierent location. 26. It follows that I was not persuaded that there was any merit in the Plainti’s claim. The Plainti has failed to prove that the Defendants owe her a duty to give her some access to her portion of land. I am not persuaded that she has proved that she has any right to be granted that access through the Defendants’ parcels of land. 27. Accordingly, the suit herein is dismissed with costs to the 1st Defendant. DATED, SIGNED AND DELIVERED AT NYERI THIS THURSDAY 17TH DAY OF OCTOBER, 2024. In the presence of: Mr. Ng’ang’a for the Plainti. Mr. Nderi for the Defendant. Court Assistant: Kendi ..................... J. O. OLOLA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14147/eng@2024-10-17 4

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