Kuria & 3 others v Muriithi & another (Environment and Land Case E034 of 2025) [2026] KEELC 1941 (KLR)

Lands known as Parcel Tetu/Ihururu/466 and Tetu/Ihururu/467 onto the Public Road known as Ihururu -Ngoru Road. 5. An Order be granted that in default of the Defendants/Respondents complying within seven (7) days from the date of issuance of any Orders issued under Prayers (3) and /or (4) above, the Plaintifis/Applicants do remove the same and the cost thereof be borne by the Defendants/ Respondents. 6. A further Order be granted that the implementation of the Orders granted herein be supervised by the Chief Muhoya Location and the Oficer Commanding Station (OCS) at Nyeri Police Station. 7. Such other or further orders as this Honourable Court may deem fit to grant. 8. The costs of this Application be paid for by the Defendants/Respondents. 2. The Application is supported by the afidavits of the Plaintifi/Applicants Joseph Gitonga Kuria, Samuel Ndegwa Kuria, Rose Wanjiru Kuria and Kimamo Kuria and the grounds appearing on the face thereof. The Applicants state that an absolute and indefeasible right of way easement comprising of an access road measuring 5 meters in width and 97.5 meters in length having crystallized in 1986 in favour of the dominant land parcel Tetu/Ihururu/291 (hereinafter referred to as 291) against the servient land parcel Tetu/Ihururu/184 (hereinafter referred to as 184), the two subsequently created parcels of land known as Tetu/Ihururu/466 (hereinafter referred to as 467) and Tetu/Ihururu/467(hereinafter referred to as 466) through which the said access road to and from the dominant land now runs were and still are subject to the same encumbrance of a right of way easement as an overriding interest. 3. They claim that the blocking of the said access road on 15th May 2025 by the Respondents is an infringement of their right to access the Dominant land as well as the absolute and indefeasible benefit annexed to the dominant land parcel 291 to enjoy the use of the said access road. The said action has caused loss of business, destruction of goodwill and reputation to the 4th Plaintifi’s commercial guest house business, is causing the Plaintifis and other family members to sufier harm of unforetold anxiety, anguish, physical emotional and physiological torment by denying them access to the family home for their usual family reunions, which harm cannot be compensated by an award of damages. 4. The Plaintifis claim that they have met the threshold for the grant of interlocutory injunctive orders as laid down in the case of Giella vs Cassman Brown and Co. Ltd 1973 EA 358. They claim that the dominant land, having openly, as of right and without any interruption, enjoyed the benefit of the access road firstly over the servient 184 and thereafter the servient parcels 466 and 467 for over 20 years, has a prima facie case with a probability of success. 5. The Applicants further claim that the balance of convenience tilts in favour of granting injunctive orders to maintain the status quo ante the said blockage of 15th May 2025 by ordering that the access road be reopened and restored to use pending the final hearing and disposal of the suit. 6. They further express willingness and readiness to give such undertaking as to damages as the Court may direct. 7. The 1st, 2nd & 3rd Plaintifis/Applicants are the Legal Representatives of the Estate of Johnson Kuria Gitonga, also known as Kuria, son of Gitonga (Deceased), having been issued with a Grant of Letters of Administration on 11th March 2022, which was subsequently confirmed on 4th November 2024. 8. The 4th Applicant deposed that the basis of his claim is that he is a beneficiary of the remainder of the land comprised in the "Dominant Land" described as the land after two eighths (2/8) thereof is https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 2

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hived ofi and vested in some of the beneficiaries of the estate of the deceased as already agreed in Nyeri High Court Succession Cause No. 024 of 2021 in the matter of the Estate of Johnson Kuria Gitonga pursuant to the Certificate of Confirmation of Grant issued on 4th November 2024. 9. The Applicants depose that the Dominant Land Parcel 291 has been their family home since 1966. The land was created when, sometime in 1965/1966, land parcel Tetu/Ihururu/185 (hereinafter referred to as 185), then registered in the name of Simeon Thungu, was subdivided, yielding Parcels 290 and 291. LR 291 was sold and transferred to their father, Johnson Kuria Gitonga, also known as Kuria s/ o Gitonga (now deceased) and the title deed was issued on 3rd January 1966. 10. The 4th Applicant stated that with the approval of the deceased registered proprietor during his lifetime and all the other beneficiaries of his estate, he developed his own nuclear-family country home and a Guest House business thereon operated under the name of KK Manor that receives paying guests on the Dominant Land. 11. Subsequently, in 1994, land parcel 290 was subdivided, yielding parcels 466 and 467, which were registered in the names of the 1st and 2nd Defendants, respectively. Land Parcel 291 lies adjacent to the newly created Parcel 466, which in turn lies adjacent to the newly created Parcel 467. It continued to enjoy and benefit from the use of the same Access Road. That during the period from 1966 to 1994, when the said Access Road traversed through the said Parcels 184 and thereafter, when the said Parcels 466 & 467 were created, the said Access Road continued there through, the Plaintifis/Respondents and the said Parcel 291 have continued to peacefully enjoy the benefit of the said Access Road without any interruption. 12. The Applicants claim that from 1966, the period of 20 years contemplated under Section 32 © of the Limitation of Actions Act was attained in 1986, at which time an absolute indefeasible right of way easement in the form of the access road crystallised, benefiting the land parcel 291 as the dominant land and burdening the parcel 184 and subsequently 466 and 467. 13. On or about 15th May 2025, the Applicants accuse the Defendants/Respondents of obstructing the continued use and accessibility of the said Access Road by placing tree branches, erecting a baricade using barbed-wire fence and planting avocado seedlings, thereby making it impossible to use the said Access Road. 14. Upon trying to resolve the issue directly with the Respondents and through the area chief, Muhoya location and the Assistant Chief, seeking their intervention. The failed and/or refused to discuss the issue and/or attend dispute resolution meetings. 15. The Applicants claim that the Respondents, in a response through their Advocates, denied the alleged blockage of the Access Road and stated that the Plaintifis / Applicants have two other alternative access points to Parcel 291. The further claim that the Respondents have maintained the said obstruction. The 1st and 2nd Defendants/Respondents’ notice of Preliminary objection and replying afidavits 16. 17. The 1st and 2nd Defendants filed a Notice of preliminary objection to the instant application dated 16th October 2025 on the following points: 1. That the suit and the application dated 30th September 2025 are bad in law and incurably defective. 2. The 4th Plaintifi/Applicant has no locus-standi and should be struck from the record. Both Defendants/Respondents swore separate replying afidavits on 29 October 2025, and deposed that they are not, and have never been, the legal representatives of their father's estate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 3

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18. The 1st Respondent confirmed that he is the registered owner of Land Parcel Tetu/Ihururu/466, while the 2nd Respondent confirmed that he is the registered owner of Tetu/Ihururu/467, which were both subdivisions of Tetu/Ihururu/184. 19. They denied having to go through each other’s property to access their parcels of land and depose that there exists a permanent gate giving direct access to Land Parcel Tetu/Ihururu/291 from the main Ihururu/Ngoru Road, which is all weather. That the said parcel also has access to another main road, the Ihururu-Ihwa road, which is tarmacked. 20. The Respondents denied blocking the Plaintifis' land. 21. The Respondents also stated that their parcels of land have access to the two roads and have permanent gates. 22. They also denied the existence of a running hotel on Land Parcel number 291 and highlighted that the 4th Applicant has not produced a trading license nor a statement of accounts. 23. It is also highlighted that the said Land ParcelTetu/Ihururu/291 is not registered in the 4th Applicant’s name, and they deposed that he has no locus standi to institute this suit. The Applicants’ supplementary afidavit and Grounds of objection 24. 25. The Applicants filed grounds of objection to the Defendants/Respondents’ preliminary objection on the following grounds: 1. It does not raise purely points of law which, if argued as a P.O., may dispose of the entire suit. 2. Even if the P.O. is heard and allowed thereby striking out the 4th Plaintifi as a party, the suit will remain alive to be prosecuted by the remaining Plaintifis. 3. The determination of the purported P.O. will require the Court to delve into factual matters, including the fact that: a. The 4" Plaintifi is the beneficiary of the remainder of Parcel Tetu/Ihururu/291 after 2/ 8 (two eighths) thereof is hived ofi and transferred to Jane Muthoni Kago and Esther Wanja Kuria in equal shares of 1/8 (one eighth) each under the Certificate of Confirmation of Grant dated 4th November 2024, hence his inclusion in the Suit. b. The Locus standi of the 4" Plaintifi and whether the facts of the case and the beneficial interest the 4" Plaintifi has in the suit property allow him to sue or be sued with respect to the same. c. The P.O has been improperly raised and does nothing but unnecessarily cost and confuse the issue. d. It is totally unmerited and ought to be dismissed with costs. e. It is totally unmerited and ought to be dismissed with costs. The 4th Applicant also swore a supplementary afidavit on 5th November 2025 in response to the Respondents’ replying afidavits. He deposed that Land Parcel 291 has had an access road measuring 5 meters wide and 27.5 meters long since 1966, which leads to the main Ihururu/Ngotu Road from Land Parcel 184, which he states is now an absolute and indefeasible right-of-way easement and an overriding interest on Land Parcels 466 and 467, the resultant subdivisions of Parcel 184. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 4

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26. The above-stated access road having crystallised into a right of way, the 4th Applicant deposes that it is irrelevant whether Land Parcel 291 has other alternative access routes. He states that the only accessible road, as of now, is a footpath, which motor vehicles cannot pass through. He added that the pending subdivision of Land Parcel 291 as per Nyeri High Court Succession Cause E024 of 2021 will cause the same to become inaccessible from any side. 27. On his locus standi, the 4th Applicant reiterated that he is a beneficiary of his father's estate as per the Certificate of Confirmation of Grant dated 4th November 2024. The Plaintifis/Applicant’s submissions 28. Counsel for the Applicants submitted that this case revolves around a dispute between the Plaintifis/ Applicants and the Defendants/Respondents concerning the obstruction of an access road leading to the Plaintifis’ dominant land, Parcel Tetu/Ihururu/291. The access road, which measures 5 meters in width and 97.5 meters in length, connects the dominant land to the public road known as Ihururu-Ngoru Road through the Defendants’ servient lands, Parcels Tetu/Ihururu/466 and Tetu/ Ihururu/467. 29. The Plaintifis include Joseph Gitonga Kuria, Samuel Ndegwa Kuria, and Rose Wanjiru Kuria, who are the legal representatives of the estate of the late Johnson Kuria Gitonga, as well as Kimamo Kuria, a beneficiary of the estate and the owner of developments on the dominant land. The Plaintifis filed a Notice of Motion dated 30 September 2025 under a Certificate of Urgency, seeking interlocutory injunctive orders to address the obstruction of the access road. The Defendants, Charles Mugo Muriithi and George Wakibia Muriithi, responded with a Notice of Preliminary Objection (P.O.) dated 16 October 2025, challenging the validity of the suit and the locus standi of the 4th Plaintifi. 30. The Plaintifis argue that Parcel Tetu/Ihururu/291 has been registered in the name of the late Johnson Kuria Gitonga since 1966. The estate of the deceased was dealt with in the Nyeri High Court Succession Cause No. E024 of 2021, and the Certificate of Confirmation of Grant dated 4 November 2024 confirmed the distribution of the estate. Under this certificate, the 4th Plaintifi, Kimamo Kuria, was named as the beneficiary of the remainder of Parcel Tetu/Ihururu/291 after portions were allocated to other beneficiaries. The 4th Plaintifi has also constructed a guest house and other developments on the dominant land, which serve as a source of income. 31. The Plaintifis assert that the dominant land has enjoyed the use of the access road since 1966. They argue that the easement became absolute and indefeasible after 20 years of uninterrupted use, as per Section 32(c) of the Limitation of Actions Act. Furthermore, they contend that the easement constitutes an overriding interest under Section 28 of the Land Registration Act, which binds all subsequent owners of the servient lands. The Plaintifis cite legal precedents, including Kamau v Kamau (1984) and Geilla v Cassman Brown and Co. Limited (1973), to support their claim that the easement is valid and enforceable. 32. The Defendants raised a Preliminary Objection on two grounds: first, that the suit and the application dated 30 September 2025 are bad in law and incurably defective, and second, that the 4th Plaintifi lacks locus standi and should be struck ofi the record. The Plaintifis countered these claims, arguing that the P.O. lacks merit and does not meet the legal threshold for a valid preliminary objection as established in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969). They contended that the P.O. does not raise pure points of law and requires the court to delve into factual matters, which is contrary to the principles of a valid P.O. The Plaintifis further argued that the 4th Plaintifi has locus standi as he is a beneficiary of the estate of Johnson Kuria Gitonga, as confirmed by the Certificate of Confirmation of Grant. Additionally, the 4th Plaintifi is the owner of developments on the dominant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 5

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land, including a guest house and other structures, and has a direct interest in the case. The Plaintifis emphasised that even if the 4th Plaintifi were struck ofi as a party, he would remain a relevant witness, and his afidavit and witness statement would still be part of the evidence. 33. The Plaintifis argue that the access road is essential for the practical and convenient use of the dominant land, including access to their family home and the operation of the 4th Plaintifi's guest house business. They contend that the closure of the access road on 15 May 2025 has caused significant harm, including anxiety, emotional distress, financial loss, damage to the guest house's reputation, and violation of their constitutional rights under Article 40 of the Constitution of Kenya, which guarantees the property right. 34. The Plaintifis emphasise that they have established a prima facie case with a high probability of success, as the dominant land has enjoyed the access road for over 20 years, creating an absolute and indefeasible easement. They further argue that the closure of the access road has caused irreparable harm that cannot be compensated for by damages. The Plaintifis urge the court to dismiss the Preliminary Objection, grant the interlocutory injunctive orders to restore access to the dominant land, and award costs of the application to the Plaintifis. They argue that the immediate opening and restoration of the access road is necessary to prevent further harm and ensure the continued enjoyment of their property rights. 35. Counsel stated that they have met the threshold of injunctive orders and relied on the following authorities of: Giella vs Cassman Brown and Co. Limited 1973 EA358, Mrao vs First American Bank of Kenya Limited & Others (2003) KLR, Equator Inn t/a Tsavo Inn Hotel Vs National Oil Corporation Kenya (2017) eKLR, Patrick J.N. Wamae &P Another vs Serah Wanjiku Karuki ELC 620 of 2017), Joash Ochieng Ougo Civil Appeal No. 3 of 1987 (as cited with approval in the case of Patrick J.N. Wamae & Another vs Serah Wanjiku Karuki ELC 620 of 2017), Kamau Mucuha Vs The Ripples Limited Civil App. No. Nairobi 186 of 1992 (Unreported) cited with approval in FairView Estate Limited Vs Ann Wangari Kirima & 2 Others ELC No. 440 of 2016 and FairView Estatė Limited Vs Ann Wangari Kirima & 2 Others ELC No. 440 of 2016 The Defendant/Respondents’ submissions 36. The Defendants/Respondents filed written submissions in opposition to both the suit and the interlocutory application. Their submissions raise two principal grounds. First, they challenge the competence of the suit based on locus standi and alleged procedural defects. Secondly, and in the alternative, they contend that the Applicants have failed to establish a prima facie case with a probability of success so as to warrant the grant of interlocutory relief. 37. On the question of capacity, the Respondents submit that the suit was initially instituted against three defendants, including a deceased person and that although the Plaintifis subsequently amended the plaint to remove the deceased defendant, they failed to, at the same time, amend the application before the Court. They argue that the omission renders the application fatally defective. Further, they raise a preliminary objection to the inclusion of the 4th Plaintifi/Applicant, who is described in the pleadings as a "beneficial owner" of a portion of the dominant land. The Respondents contend that only duly appointed personal representatives of a deceased's estate have the legal authority to institute proceedings on behalf of the estate. They rely on Section 82(a) of the Law of Succession Act, which vests the power to enforce causes of action in personal representatives, subject to the terms of the grant. It is their position that the grant annexed to the Applicants' afidavit names only the 1st, 2nd and 3rd Plaintifis as personal representatives of the estate of the deceased and does not include the 4th Plaintifi. Accordingly, they argue that the 4th Plaintifi lacks locus standi and that his joinder ofiends the clear provisions of the law, thereby rendering the suit and application defective to that extent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 6

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38. Without prejudice to the foregoing, the Respondents address what they term the second limb of their opposition, namely, whether the Applicants have satisfied the legal threshold for the grant of interlocutory relief. They submit that the Applicants have not demonstrated a prima facie case with a probability of success. In support of that position, reliance is placed on the replying afidavits sworn by Charles Mugo Muriithi and George Wakibia Muriithi, which, according to the Respondents, establish several material facts that have not been controverted. 39. The Respondents depose that parcel Tetu/Ihururu/291 is directly accessible from two public roads, namely Ihururu–Ngoru Road and Ihururu–Ihwa Road. They further state that there exists a permanent gate leading from Tetu/Ihururu/291 onto Ihururu–Ngoru Road. It is also their case that all three suit properties — Tetu/Ihururu/291, Tetu/Ihururu/466 and Tetu/Ihururu/467 — enjoy direct access to the Ihururu–Ngoru main road. The Respondents aver that the main gate to Tetu/ Ihururu/467 has not been blocked and that Tetu/Ihururu/466, owned by the 1st Respondent, equally has a permanent main gate opening onto Ihururu–Ngoru Road. They add that Ihururu–Ngoru Road is tarmacked while Ihururu–Ihwa Road is murram, and that there is no evidence of any hotel known as “KK Manors” as alleged by the Applicants. 40. On the basis of these averments, the Respondents submit that the Applicants have not demonstrated any denial of access or unlawful obstruction of their use and enjoyment of the suit properties. They contend that the evidence on record shows that the Applicants continue to have adequate and convenient access to public roads and that the substratum of the application — alleged blockage or interference with access — is not borne out by the facts. They therefore argue that the Applicants have failed to establish any infringement of proprietary rights that would warrant the intervention of the Court by way of an injunction. 41. With respect to the claim of an easement, the Respondents rely on the statutory framework governing the creation and subsistence of easements. They cite Section 136(2) of the Land Act, 2012, which provides that an easement is capable of existing only during the subsistence of the land or lease out of which it was created and in the manner provided by law. They submit that an easement is not an abstract right but one that is legally anchored to identifiable dominant and servient tenements and must be created in accordance with statute. They further rely on Section 98(1) and (3) of the Land Registration Act, 2012, which stipulates that an easement may only be granted by an instrument in the prescribed form and that such instrument must clearly specify the nature and extent of the easement. It is their contention that no instrument creating or registering an easement over the Respondents’ parcels has been exhibited by the Applicants. 42. The Respondents also place emphasis on the historical evolution of the suit properties. They submit that parcels Tetu/Ihururu/466 and Tetu/Ihururu/467 were subdivisions of Tetu/Ihururu/184 undertaken around 1994, while parcel Tetu/Ihururu/291 was a subdivision of Tetu/Ihururu/185, which was adjacent to parcel 184. They argue that once parcel Tetu/Ihururu/184 was subdivided, it ceased to exist as a legal entity. Consequently, any easement that may have subsisted over the original parcel 184 could not automatically attach to the resultant subdivisions unless expressly recreated or registered in compliance with the law. In their view, any alleged easement over Tetu/Ihururu/184 was extinguished upon subdivision and cannot lawfully be enforced against parcels Tetu/Ihururu/466 and Tetu/Ihururu/467. 43. In totality, the Respondents urge the Court to uphold their preliminary objection on locus standi, find the application procedurally defective, and further hold that the Applicants have not established a prima facie case with a probability of success. They maintain that there is no evidence of unlawful obstruction of access and no proof of a valid or subsisting easement binding upon the Respondents’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 7

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land. On those grounds, they pray that the suit and the application be struck out or, in the alternative, that the application for interlocutory relief be dismissed with costs. The Applicants’ supplementary submissions 44. The Applicants chose to file additional submissions. With regards to the Defendants' contention that the application is fatally defective, it is submitted that, having amended the plaint to remove the name of Raphael Muriithi Waithirinje(Deceased) as a defendant, there was no further need to amend the Notice of Motion as well. 45. On locus standi, it is submitted that the 4th applicant has not sued as a personal representative of his father’s estate, but as a beneficial owner. 46. They reiterated that the Applicants have acquired an absolute and indefeasible right of easement, which is now an overriding interest as per Section 28 of the Land Registration Act and Section 32 of the Limitation of Actions Act. Besides the cases cited in their earlier submissions, they relied on the additional authority of Ruth Wamucii vs Monica Mirae Kamau. 47. They submit that the Respondents have misconstrued the interpretation of Section 136(2) of the Land Act, stating that Land Parcel 184 did not cease to subsist when it was subdivided. Analysis and Determination 48. Before this Court for determination are two interrelated matters: the Defendants’ preliminary objection challenging the competence of the suit and the Plaintifis’ Notice of Motion seeking interlocutory injunctive orders. By directions of the Court, both the preliminary objection and the application were canvassed together by way of written submissions. 49. The preliminary objection raises the issue of locus standi and alleged procedural defects in the institution of the suit. The application seeks interim injunctive relief premised on alleged obstruction of access and the existence of an easement over the Defendants’ parcels of land. 50. Having carefully considered the pleadings, afidavits on record, rival submissions and the applicable law, the Court finds the following issues arising for determination. A. Whether the 4th Plaintifi has locus standi in these proceedings; B. Whether the suit and/or application is fatally defective; C. Whether the Plaintifis have established a prima facie case with a probability of success to warrant the grant of an interlocutory injunction; and D. Who should bear the costs? The preliminary Objection 51. A Preliminary Objection was described in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 as follows: “ So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration". https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 8

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52. Further, Sir Charles Newbold, JA stated that:“ A Preliminary Objection is like what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop". 53. The above case was cited with approval by the Supreme Court in the case of Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013 (Consolidated)) [2013] KESC 8 (KLR) (24 October 2013) (Ruling), relied upon by the Applicants. 54. Thus, a preliminary objection should only raise pure points of law on the assumption that all the facts pleaded by the other side are correct. The Court ought not to deal with contested matters that require evidence. 55. The first point of the P.O is that the suit is incurably defective for misjoinder of the late Raphael Wathirinje (Deceased) as the 1st Defendant. On this point, the Plaintifis filed an Amended Plaint removing the name of the said defendant, and the Court need not delve into that issue any further. 56. The Respondents challenged the application on a further procedural defect in the Application, arguing that although the Plaintifis amended the plaint to remove a deceased Defendant, they did not amend the interlocutory application correspondingly, thereby rendering it defective. 57. The Court is of the view that while procedural compliance is important, the Court must examine whether the omission causes prejudice or goes to jurisdiction. The Court is satisfied that the amendment of pleadings suficiently clarified the parties before the Court and that no substantive prejudice has been demonstrated. The omission is procedural and does not render the application incurably defective. 58. The second point is on the locus standi of the 4th Plaintifi. The Defendants contend that the 4th Plaintifi lacks locus standi as he is described merely as a "beneficial owner" and not as a duly appointed legal representative of the estate of the deceased. They rely on Section 82(a) of the Law of Succession Act, which vests in personal representatives the power to enforce causes of action that survive a deceased person. 59. It is trite law that only a person holding a grant of representation has the legal capacity to institute proceedings on behalf of a deceased’s estate. In Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR, the Court of Appeal held that a party without a grant of representation lacks locus standi to maintain an action on behalf of a deceased’s estate. 60. The grant annexed to the Plaintifis’ afidavit demonstrates that the 1st, 2nd and 3rd Plaintifis are the duly appointed legal representatives of the estate of the deceased. On the locus standi of the 4th Plaintifi, the question for determination is whether, as a Beneficiary named in the Certificate of Confirmation of Grant and having been allocated part of the suit property, he can institute the present proceedings in his own name. 61. Under the Law of Succession Act Section 79, the property of a deceased person vests in the personal representative upon the grant of representation. Further, Section 82(a) donates to the personal representative the power to enforce, by suit or otherwise, all causes of action vested in the deceased. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 9

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62. It is therefore settled law that, before the issuance of a grant, no person has the capacity to sue or be sued on behalf of the estate. This principle was authoritatively stated in Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another and reiterated in Trouistik Union International & Another v Jane Mbeyu & Another, where the Court of Appeal held that only a duly appointed personal representative can maintain an action in respect of estate property. 63. In the present case, however, it is not disputed that a grant was issued and subsequently confirmed. Upon confirmation under Section 71 of the Act, the shares of the beneficiaries crystallise and become vested, subject only to transmission. A Certificate of Confirmation of Grant is not a mere administrative instrument; it constitutes a judicial determination of the mode of distribution of the estate. 64. The Court must therefore distinguish between legal title and beneficial interest. While legal title to estate property remains vested in the administrator pending transmission and registration in accordance with the Land Registration Act, confirmation of grant confers upon the beneficiary a definite and enforceable beneficial interest in the allocated property. 65. Where a beneficiary institutes proceedings to protect that crystallised interest, particularly in circumstances where, as in the present case, the suit concerns protection of the beneficiary's allocated share rather than enforcement of a cause of action vested in the deceased, the Court may properly recognise locus standi in the beneficiary to avoid defeating substantive justice. 66. Accordingly, in the present circumstances, the Court is satisfied that the 4th Plaintifi’s beneficial interest confers suficient standing and the Defendant’s objection to his joinder in the suit has no merit. The main application 67. The substantive prayers that remain for determination seek an interlocutory Injunctive Order directing the Defendants/Respondents, 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 to and from over the Dominant Land known as Parcel Tetu/Ihururu/291 through the Defendants'/Respondents' two parcels of Servient Lands known as Parcel Tetu/Ihururu/466 and Tetu/Ihururu/467 onto the Public Road known as Ihururu -Ngoru Road. 68. The Applicants further seek an order that, in default of the Defendants/Respondents complying within seven (7) days from the date of issuance of any Orders issued under Prayers (3) and /or (4) above, the Plaintifis/Applicants do remove the same and the cost thereof be borne by the Defendants/ Respondents. 69. The Black's Law Dictionary defines an 'injunction' as: "A court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury.” 70 The Court is alive to its duty, and at this stage and in an application such as is before it, the Court is not called upon to make conclusive findings on the merits of the suit. When an injunction compels a party to refrain from doing a specific act, it is known as a prohibitory injunction, and when it compels a party to do a specific act, it is known as a mandatory injunction. In the present case, the Applicants seek a mandatory injunction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 10

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71 The Court of Appeal addressed the matter of whether mandatory injunctions can be granted at an interlocutory stage in the case of Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] eKLR and quoted its previous decisions thus: “ As this Court stated in Kenya Breweries Limited & another vs. Washington O. Okeyo [2002] eKLR 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 but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application. The Court also stated in Sharifi Abdi Hassan vs. Nadhif Jama Adan [2006] eKLR that: “ The courts have been reluctant to grant a mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is in the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for a full hearing of the entire case." 72 Thus, interlocutory mandatory injunctions are only granted in special circumstances and if a case is clear and in circumstances where the court thinks it ought to be decided at once. The Applicant must clearly establish the conditions that warrant a grant of an injunction. Whether a Prima Facie Case Has Been Established 73 The principles governing interlocutory injunctions are settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and refined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR. An applicant must demonstrate. 1. A prima facie case with a probability of success; 2. That they will sufier irreparable injury which cannot be adequately compensated by damages; and 3. If in doubt, the balance of convenience. 74 A prima facie case was defined in Mrao (supra) as one which, on the material presented, shows a right that has apparently been infringed by the opposite party to call for an explanation or rebuttal. 75 The Plaintifis’ claim is premised on alleged obstruction of access to land parcel Tetu/Ihururu/291, through land parcels Tetu/Ihururu/466 and Tetu/Ihururu/467 and the existence of an easement over the Defendants’ land. 76 The Defendants’ replying afidavits assert that: Parcel Tetu/Ihururu/291 has direct access to Ihururu– Ngoru and Ihururu–Ihwa Roads; They claim that there exists a permanent gate leading to Ihururu– Ngoru Road and that Parcels Tetu/Ihururu/466 and 467 equally have direct access to Ihururu– Ngoru Road. The Respondents further state that no gate has been blocked since, in any event, the 2nd Respondent uses the gate to access his land LR 467, and the suit properties retain access to public roads. The Respondents categorically state that the Applicants do not access their property through their parcels of land. Further, the 1st Respondent stated that he does not access his land through the 2nd Respondent's land since he has direct access to the main road. 77 The Applicants argue that since the right to the easement has crystallised, the question of whether or not they have alternative access to the main roads is irrelevant. They further state that in any event, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 11

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access to the two public roads is impossible due to the steep gradient and the fact that creating a direct access road connecting their land to the main road will eat into their land and possibly make the 4th Applicant's land landlocked. 78 In the court's view, the essence of this suit is the determination of whether or not the rights to the easement have accrued. As quoted elsewhere in this ruling, under Section 32(2) of the Limitation of Actions Act (Cap 22), rights to easements accrue after 20 years of continuous, uninterrupted, and open enjoyment, provided this period ends within the two years immediately preceding the legal action. The Applicants will have to prove through evidence the existence of the key requirements that there was usage of the access road as of right, without force, secrecy, or permission. 79 The Plaintifis assert the existence of an easement over the Defendants’ parcels. The Defendants dispute the existence of any registered or subsisting easement. Section 98(1) and (3) of the Land Registration Act provides that an easement may be created by an instrument in the prescribed form and must clearly specify its nature and extent. Section 98 provides for the creation of an easement and states as follows; (1) An owner of land or a lessor may, by an instrument in the prescribed form, grant an easement over the land, lease or a part of that land to the owner of another parcel of land or a lessee for the benefit of that other parcel of land. (2) The owner of land or a lessor referred to in subsection (1), who is transferring, assigning or leasing land or a lease may, in the transfer, assignment or lease, grant an easement for the benefit of the land transferred, assigned or leased over the land retained by him or her or reserve an easement for the benefit of land retained by him or her. (3) An instrument creating an easement shall clearly specify— (a) the nature of the easement and any conditions, limitations or restrictions subject to which it is granted; (b) the period of time for which it is granted; (c) the land, or the specific part of it burdened by the easement; and (d) The land to benefit from the easement, and shall, as required by the Registrar, include in a plan that suficiently defines the easement. (4) If a co-owner, by a disposition, severs any building or part of it or land separated by a common dividing wall or other structure, whether that wall or other structure is a party wall or other structure, cross-easements of support of the dividing wall or other structure in respect of the severed buildings or land and the owners of the severed buildings or land shall be implied in the disposition and their successors in title shall be entitled to the benefit subject to the burdens of the cross-easements. (5) There shall be implied in every grant of an easement the grant of all ancillary rights which may be reasonably necessary for the full and efiective enjoyment of the grant. (6) A grant of an easement may contain an agreement between the owners of the dominant and servient lands binding either or both of them to pay for or contribute towards the cost of constructing, maintaining or repairing any way, wall, drainage, installation or work forming the subject matter of the easement. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 12

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80. (7) No easement and no right in the nature of an easement shall be capable of being acquired by any presumption of a grant from long and uninterrupted use. (8) Nothing in this section shall prevent the lawful use of a right of way for persons and for stock acquired, and that right of way shall be deemed to be property. Section 136(2) of the Land Act, 2012 provides that an easement subsists only during the existence of the land out of which it was created and states that; (1) (2) 81. (a) The land for the benefit of which any easement is created is referred to as the “dominant land", and the land of the person by whom an easement is created is referred to as “the servient land”; and (b) An easement is, in relation to the dominant land referred to as “benefiting that land” and is, in relation to the servient land, referred to as “burdening that land’; Subject to the provisions of this Part, an easement shall be capable of existing only during the subsistence of the land or lease out of which they were created the subsistence of the land on lease of which they were created or in any other manner provided by any other legislation. The Applicants, on the other hand, rely on Section 32 of the Limitation of Actions Act, Section 30 of the Repealed Registered Land Act and Section 28 of the Land Registration Act. Section 32 of the Limitation of Actions Act provides as follows; (1) 82. In this Part, unless the context otherwise requires— Where— (a) The access and use of light or air to and for any building have been enjoyed with the building as an easement; or (b) any way or watercourse, or the use of any water, has been enjoyed as an easement; or (c) any other easement has been enjoyed, peaceably and openly as of right, and without interruption, for twenty years, the right to such access and use of light or air, or to such way or watercourse or use of water, or to such other easement, is absolute and indefeasible. (2) The said period of twenty years is a period (whether commencing before or after the commencement of this Act) ending within the two years immediately preceding the institution of the action in which the claim to which the period relates is contested. Section 30 of the Repealed Registered Land Act provided for overriding interests as follows; Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and afiect the same, without their being noted on the register – (a) rights of way, rights of water and profits subsisting at the time of first registration under this Act; (b) natural rights of light, air, water and support; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 13

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(c) rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law; (d) leases or agreements for leases for a term not exceeding two years, periodic tenancies and indeterminate tenancies within the meaning of section 46; (e) charges for unpaid rates and other moneys which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land; (f) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription; (g) the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed; (h) electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in pursuance or by virtue of any power conferred by any written law: Provided that the Registrar may direct registration of any of the liabilities, rights and interests hereinbefore defined in such manner as he thinks fit 83. Overriding interests are also provided for under Section 28 of the Registration of Land Act as follows; Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and afiect the same, without their being noted on the register— (a) spousal rights over matrimonial property; (b) trusts, including customary trusts ; (c) rights of way, rights of water and profits subsisting at the time of first registration under this Act; (d) natural rights of light, air, water and support; (e) rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law; (f) leases or agreements for leases for a term not exceeding two years, periodic tenancies and indeterminate tenancies; (g) charges for unpaid rates and other funds which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land; (h) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription; (i) electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in pursuance or by virtue of any power conferred by any written law; and (j) any other rights provided under any written law. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 14

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84. Having considered the entire afidavits, photographic and documentary evidence on record, the Court is satisfied that the Applicants have made a prima facie case showing that at some point in time, there existed an access road running from the main road, through the initial parcel of land number Tetu/ Ihururu/184 and the subsequent subdivisions of Tetu/Ihururu/466 and 467 and that the said access road was used to access land parcel number Tetu/Ihururu/291 from the existing main road, IhuruNgoru Road. This is shown by the depositions of the afidavits in support of the application herein that the Applicants have used the said access road for a long period of time. 85. The Court is not convinced by the feeble attempts by the Respondents to deny the existence of the said access road. In the Court's view, the Respondents' main claim is that the Applicants have alternative direct access from their land parcel number 291 to the two roads, Ihururu-Ngoru Road and IhururuIhwa Road. The Respondents also claim that the creation of an easement is governed by Section 98(1) and (3) of the Land Registration Act and Section 136(2) of the Land Act, 2012 and that there is no evidence that the claimed easement complies with the said provisions of the law. 86. The Court is also persuaded that a prima facie case has been made out that there exists a family home and a guest house on the suit land parcel number 291. 87. The Court also finds that a prima facie case has been made out there is obstruction of the access road connecting the Plaintifi parcel of land Tetu/Ihururu/291 through the Defendants'/Respondents' two parcels of Land Tetu/Ihururu/466 and Tetu/Ihururu/467 onto the Public Road known as Ihururu Ngoru Road by the use of tree branches and barbed wire.. 88. The Court is satisfied that in as much as easements may arise out of registration as provided under Section 98 of the Land Registration Act and Section 132 of the Land Act, they may also arise by implication or prescription in appropriate cases as claimed by the Applicant herein, and as provided under the Limitation of Actions Act as set out above and as overriding interests under the Repealed Registered Land Act and the Land Registration Act. 89. However, the Court notes that while it may be easy to prove a registered easement, in this case, proof of easements created out of the latter process will require evidentiary interrogation at trial. The Applicants will need to satisfy the court at the trial that the use of the Respondent’s land to benefit their own land met the several criteria set out in law. 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. 90. The Court has struggled with the question of whether to issue a mandatory injunction at the interlocutory stage. The Court takes into consideration that the remedy of a mandatory injunction is an exceptional remedy, to be refused unless special circumstances are proven or in the clearest of cases. In the present case, the court has stated that it is satisfied that the access road has been previously in existence, though the question of duration and the circumstances of its creation, existence and use will have to be proved at the trial. 91. The Court is satisfied that the question of the existence of alternative access to the Applicants’ land must have been known to the initial land owners and/or the parties herein when the access road was created and used. According to the Applicants, it will be impractical to create a motorable access road to the developed parts of the land for the reason that the gradient from the two public roads is very steep. 92. The Court has also considered that 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, assuming that if the matter comes to Court, the Court would have dificulty in granting a mandatory injunction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 15

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Irreparable Harm and Balance of Convenience 93. On the question of irreparable harm and balance of convenience, the Court finds that the lack of access to the family home by the Applicants due to the closure of the access will cause the Applicants irreparable loss (or harm). The Applicants have claimed that the Access mentioned by the Respondents may not be practicable. The Courts often view the inability to access one's home as an infringement of property rights that cannot be adequately compensated by damages, as the deprivation of habitation or quiet enjoyment is not purely a pecuniary loss. 94. Further, the court is of the view that the harm to the applicant if the road remains closed outweighs the harm to the respondent if it is opened, since the Respondents have not alluded to any harm to themselves if the access road is opened. 95. In the result, the Court makes the following findings: 1. The Preliminary objection raised in the notice dated 16th October 2025 lacks merit and is hereby dismissed. 2. The Notice of Motion dated 30th September 2025 is hereby allowed in the following terms; i. 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 (measuring 5 meters in width and 97.5 meters in length or thereabouts) for ingress and egress to and from over Land Parcel Tetu/Ihururu/291 through the Defendants'/Respondents' two parcels of Lands known as Parcel Tetu/Ihururu/466 and Tetu/Ihururu/467 onto the Public Road known as Ihururu -Ngoru Road. ii. An Order is hereby granted that, in default of the Defendants/Respondents complying within fourteen (14) days from the date of issuance of the Orders issued under Prayers (3) above, the Plaintifis/Applicants do remove the same and the costs thereof be apportioned after the full trial. iii. A further Order be granted that the implementation of the Orders granted herein be supervised by the Chief Muhoya Location and the Oficer Commanding Station (OCS) at Nyeri Police Station. iv. Costs of the application shall be in the cause. DELIVERED, DATED AND SIGNED VIA MICROSOFT TEAMS AT NAIROBI THIS 26TH DAY OF FEBRUARY, 2026. HON. L. G. KIMANI JUDGE ENVIRONMENT AND LAND COURT In the presence of:Brian: Court Assistant. Andrew Mmbogori for the Applicants. Maina holding brief for Ng’ang’a for the Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1941/eng@2026-02-26 16

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