[2020] KEELC 3123 (KLR)

[2020] KEELC 3123 (KLR)

The court found that the plaintiffs had established a prima facie case that their plots were not on a road reserve, supported by official documents and continued payment of rates. The defendants, despite being served, failed to appear or contest the application. Given the demolition had already occurred, the court deemed prayers for injunction spent but found it necessary to grant an order for an independent survey by the Survey of Kenya to conclusively determine the actual boundaries of the disputed plots vis-à-vis the alleged road reserve. This would clarify whether the plaintiffs' property rights had been infringed and potentially obviate further litigation. The court also directed...

Citation
[2020] KEELC 3123 (KLR)
Parties
Plaintiff: Gilbert Gitari Bore; Plaintiff: Omari Marijan Omari; Defendant: Kenya Urban Roads Authority; Defendant: The Administrator – Chuka Township; Defendant: The County Government of Tharaka Nithi; Defendant: Hyper Construction & Equipment Company Ltd
Court
Environment and Land Court
Court Station
Environment and Land Court at Chuka
Jurisdiction
Kenya
Judgment Date
7 April 2020
Case Number
Environment & Land Case 01 of 2020
Procedural Posture
Miscellaneous Application / Interlocutory Application Ruling
Outcome
Application partially allowed; prayers 4 and 5 granted, other prayers spent or not granted.
Legal Topics
Injunctive Relief, Land Boundaries, Road Reserves, Title Documents, Constitutional Property Rights
Source Language
English
Land and Property Injunctive Relief Land Boundaries Road Reserves Title Documents Constitutional Property Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Gilbert Gitari Bore

Plaintiff

Omari Marijan Omari

Plaintiff

Kenya Urban Roads Authority

Defendant

The Administrator – Chuka Township

Defendant

The County Government of Tharaka Nithi

Defendant

Hyper Construction & Equipment Company Ltd

Defendant

Procedural Posture

Miscellaneous Application / Interlocutory Application Ruling

Legal Issues

  1. 1 Whether the plaintiffs are entitled to an interim injunction restraining the defendants from demolishing or interfering with plots No. 223 and 225, Chuka Township.
  2. 2 Whether the subject plots encroach on a road reserve, specifically 'Moi Girls' road.
  3. 3 Whether the plaintiffs' constitutional rights to property have been violated by the defendants' actions.

Ratio Decidendi

The court found that the plaintiffs had established a prima facie case that their plots were not on a road reserve, supported by official documents and continued payment of rates. The defendants, despite being served, failed to appear or contest the application. Given the demolition had already occurred, the court deemed prayers for injunction spent but found it necessary to grant an order for an independent survey by the Survey of Kenya to conclusively determine the actual boundaries of the disputed plots vis-à-vis the alleged road reserve. This would clarify whether the plaintiffs' property rights had been infringed and potentially obviate further litigation. The court also directed...

Court Disposition

Application partially allowed; prayers 4 and 5 granted, other prayers spent or not granted.

Orders

  • The Survey of Kenya to conduct an independent survey to establish the actual boundaries and perimeters of 'Moi Girls' road vis-à-vis plots No. 223 and 225, Chuka Township, as per the national map.
  • Order to be served upon the OCS Chuka Police Station for compliance.