[2015] KEELC 286 (KLR)
The court found that the plaintiff is the registered owner of the suit land and that there exists an access road to her property, as confirmed by the County Surveyor and Land Registrar. The evidence, including the produced map, established that the first defendant, being the immediate neighbor, was responsible for...
Source-derived case information.
- Citation
- [2015] KEELC 286 (KLR)
- Parties
- Plaintiff: Esther Mutenyo Egesa; Defendant: Daniel Nyanga; Defendant: Patrick Mabuka Wanj
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 167 of 2014
- Procedural Posture
- Land Case / Judgment
- Outcome
- Plaintiff's claim against the first defendant succeeds; claim against the second defendant dismissed.
- Judges
- EO Obaga
- Legal Topics
- Access Roads, Mandatory Injunctions, Permanent Injunctions, Land Registration, Blocking of Access, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Mutenyo Egesa
Plaintiff
Daniel Nyanga
Defendant
Patrick Mabuka Wanj
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a mandatory injunction compelling the defendants to open the blocked access road.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendants from interfering with the access road.
- 3 Whether the second defendant is liable for the alleged blockage of the access road.
Ratio Decidendi
The court found that the plaintiff is the registered owner of the suit land and that there exists an access road to her property, as confirmed by the County Surveyor and Land Registrar. The evidence, including the produced map, established that the first defendant, being the immediate neighbor, was responsible for blocking the access road. The second defendant's land is separated by the main road and could not have blocked the access without affecting other plots. The defendants did not contest the suit. Consequently, the plaintiff proved her case against the first defendant on a balance of probabilities and was entitled to a mandatory injunction to open the access road and a permanent...
Court Disposition
Plaintiff's claim against the first defendant succeeds; claim against the second defendant dismissed.
Orders
- A mandatory injunction is issued directing the first defendant to open up the access road leading to the plaintiff's land.
- A permanent injunction is issued restraining the first defendant from interfering with the access road once opened.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 167 OF 2014
ESTHER MUTENYO EGESA.......................PLAINTIFF
VERSUS
DANIEL NYANGA..............................1ST DEFENDANT
PATRICK MABUKA WANJ..............2ND DEFENDANT
J U D G M E N T
INTRODUCTION
The plaintiff is the registered owner of L.R. No. Kiminini/Matunda Block 7/462. The first defendant is the registered owner of L.R. No. Kiminini/Matunda Block 7/656 and the second defendant is the registered owner of LR. No. Kiminini/Matunda Block 7/196. The defendants plots are adjacent to the plaintiff's land. The plaintiff brought this suit against the defendants seeking an order of mandatory injunction ordering the two defendants to open up an access road which they have blocked as well as a permanent injunction restraining the defendants or their agents from interfering with the access road once the same is re-opened.
The defendants were duly served with summons to enter appearance but they neither entered appearance nor filed defence. The hearing therefore proceeded by way of formal proof.
PLAINTIFF'S CASE
The plaintiff testified that she bought L.R. No. Kiminini/Matunda Block 7/462 from one Wycliffe (suit land). She was shown a road of access from the plot to the main road. She used the road of access from 2002 upto 2003 when the defendants started blocking it. She went and reported the matter to the chief who took it up with the Land Registrar.
The Land Registrar and the Surveyor visited the area and opened the access road. The defendants who had been invited to be present were not there when the road was opened. The first defendant came and fenced off the opened road forcing her to file this suit.
ANALYSIS OF EVIDENCE
The plaintiff has produced a copy of title [Exhibit 1] which shows that she is the registered owner of the suit land. The plaintiff called PW2 Christine Kapsiliot who works in the County Surveyor's Office Trans-Nzoia. This witness produced a map which shows the plaintiff's plot and the defendants plots on the ground. She confirmed that the plots were visited by the Land Registrar and County Surveyor who found out that there exists a road of access which has been blocked by the first and second defendants. The map was produced as Exhibit 2.
From the map it is clear that the first defendant is the immediate neighbour of the plaintiff. The second defendant is across the road and is opposite the first defendant. There is a road in between the plots of the first and second defendants. There is an access road which passes through the extreme side of the first defendant's land and exits to the main road which is next to the second defendant's land. It is clear from the map that if there was any blockage, of the road, it is only the first defendant who can block it because he is the only one who is next to the plaintiff. The plaintiff has indeed in her testimony stated that it is the first defendant who blocked the road of access. The second defendant will not have blocked the road without affecting the main road which traverses between his plot and that of the first defendant and serves other more plots as well.
D E C I S I O N
I find that the plaintiff has proved her case against the first defendant only. She has no case against the second defendant. Her case against the second defendant is dismissed with no order as to costs. I therefore issue a mandatory injunction directing the first defendant to open up the access road leading to the plaintiff's land. The first defendant is hereby restrained by way of permanent injunction from interfering with the road once opened. The first defendant shall bear the costs of this suit.
Dated, signed and delivered at Kitale on this 30th day of July, 2015.
E. OBAGA
JUDGE
30/7/2015
COURT
Judgment delivered in court at 9. 54 am in the absence of Plaintiff who was aware of today's date.
Court Assistant – Winnie.
E. OBAGA
JUDGE
30/7/2015