[2018] KEELC 4808 (KLR)
The court found that the orders sought by the applicant were final in nature and not suitable for determination at the interlocutory stage. There was no surveyor's report or other conclusive evidence to establish whether the disputed access road existed or traversed the respondents' land. In the absence of such...
Source-derived case information.
- Citation
- [2018] KEELC 4808 (KLR)
- Parties
- Applicant: George Bisaho Ikolomani; Respondent: Alfred Ikambili; Respondent: Defina William
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 661 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Access Rights, Interlocutory Injunctions, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Bisaho Ikolomani
Applicant
Alfred Ikambili
Respondent
Defina William
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to an order compelling the respondents to re-open the road of access between the specified land parcels.
- 2 Whether the orders sought are final in nature and can be granted at the interlocutory stage.
- 3 Whether there is sufficient evidence, such as a surveyor's report, to establish the existence and location of the disputed access road.
Ratio Decidendi
The court found that the orders sought by the applicant were final in nature and not suitable for determination at the interlocutory stage. There was no surveyor's report or other conclusive evidence to establish whether the disputed access road existed or traversed the respondents' land. In the absence of such evidence, and given the interlocutory posture of the application, the court held that the applicant had not met the threshold for the grant of the orders sought. Consequently, the application was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 661 OF 2014
GEORGE BISAHO IKOLOMANI........................PLAINTIFF/APPLICANT
VERSUS
ALFRED IKAMBILI
DEFINA WILLIAM...................................DEFENDANT/RESPONDENTS
RULING
This application is dated a 14th July 2016 and brought under order 40 rule 1 & 2 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act seeking the following orders;
1. THAT this application be certified urgent and service be dispensed with in the first instance.
2. THAT the defendants/respondents be compelled to re-open the road of access between land parcels Kakamega/Shibuname/1105 and 1085 to Kakamega/Shibuname/1083.
3. THAT costs be provided for.
The applicant submitted that, he is the registered owner of all that parcel of land known as Kakamega/Shibuname/1083 measuring 0. 32 Ha and which boarders land parcel No. Kakamega/Shibuname/1105 occupied by the 1st defendant and Kakamega/Shibuname/1085 occupied by the 2nd defendant. That the defendants have closed the road of access leading to his land hence causing him mental anguish as he has to use a long route to his home. That the defendants shall suffer no loss if the orders sought are granted. That he will continue to suffer mentally and physically if the orders sought are not granted.
The respondents submitted that, they know the plaintiff herein. He is their immediate neighbour by virtue of being a buyer. That they was served with the summons to enter appearance and plaint herein. That it is true that the plaintiff is their neighbour from North-East direction. That it is not true that they have encroached on the access road that serves the plaintiff. That it is within their knowledge that the plaintiff is served by an access road that passes along LR. KAKAMEGA/SHIBUNAME/1104. That the access road that the plaintiff seeks to re-open serves the 1st and 2nd defendants only hence the plaintiff has no right of claim to it. In fact it is trespass because the plaintiff is not entitled to the access road, as he claims. That based on the explanation above it is clear that the plaintiff’s claim is baseless and should be dismissed with costs.
This court has considered both the applicant’s and the respondents’ submissions. The application is based on the following grounds set hereunder and on further grounds on the affidavit of GEORGE BISAHO IKOLOMANI. The applicant is the registered owner of all that parcel of land known as Kakamega/Shibuname/1083 measuring 0. 32 Ha and which borders land parcel No. Kakamega/Shibuname/1105 occupied by the 1st defendant and Kakamega/Shibuname/1085 occupied by the 2nd defendant. The applicant avers that there existed a road of access between land parcels No. Kakamega/Shibuname/1085 leading to his parcel No. Kakamega/Shibuname/1083. The defendants have without any justifiable reason closed the road of access leading to the applicant’s land. That the defendants/respondents shall suffer no loss if the orders sought are granted. That the applicant shall suffer mental anguish, as he has to use a large course to access his home if the orders sought are not granted.
It is not in dispute that the applicant is the registered owner of all that parcel of land known as Kakamega/Shibuname/1083 measuring 0. 32 Ha and which boarders land parcel No. Kakamega/Shibuname/1105 occupied by the 1st defendant and Kakamega/Shibuname/1085 occupied by the 2nd defendant. The respondents state that they have not encroached on the applicant’s land and there is no access road through their land. I find that the orders sought in this application are final orders and cannot be granted at this interlocutory stage. There is no surveyors report to show whether or not the access road is through the respondents’ land. I find that the application has no merit and I dismiss the same with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 24TH DAY OF JANUARY 2018.
N.A. MATHEKA
JUDGE