https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3130

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. 832 OF 2017** **JAMES KABERIA MBUGUA** **(Suing as the Administrator of the Estate of George Mbugua Kirori –(Deceased)…………………….……..…………………………………PLAINTIFF** **VERSUS** **PETER NYAGA KAIRU…………………………….……………1ST DEFENDANT** **KIAMBU COUNTY DIRECTOR OF** **PHYSICAL AND LAND USE PLANNING…………………….2ND DEFENDANT** **JUDGMENT** 1. This suit seeks to protect the Plaintiff’s acquired right of way over existing within **LR 13537/104** towards the Nairobi- Thika Super-Highway which connects the Plaintiff and other owners of adjacent neighboring plots who have been using he said access road since prior to 1987. 2. By allegedly unlawfully interfering with the access road existing on LR 13537/104 the only access point to Thika Highway, the Defendant has turned the Plaintiff’s neighboring properties into an inaccessible fortress. **Plaintiff’s Case** 1. Through the Plaint, the Plaintiff contended that the Plaintiff’s deceased father is the registered owner of plot number LR 13537/141 near Juja Township. That the Defendant is also the registered owner of land parcel LR 13537/104. 2. That an access road was made to Plot number LR 13537/104 after the subdivision of the larger parcel of land then known as Juja Ithuri Farm where the Plaintiff’s father and the Defendant’s titles originated from. 3. It is the Plaintiff’s case that when the Survey Plan Map was made the said access road was not shown. It was included in the inside of the Defendant’s plot, which led to the Plaintiff’s father with others petitioning the Ministry of Transport and Communications and the Ministry gave consent for the provision of the access road to the Thika-Nairobi Highway. 4. Vide a letter dated 17/10/2005 the District Physical Planner after a Resolution by the District Liaison Committee allowed for the provision of the said access road. However, through a letter dated 30/04/2008 the new District Physical Planner cancelled the approval made vide the letter dated 17/10/2005. 5. The Plaintiff and others challenged the said cancellation by filing in Court **Nairobi Judicial Review Application Number 51 of 2008** and an Order of Stay of the said letter was issued on 14/10/2009. 6. Whereas the Plaintiff and others having pursued the inclusion of the said road in the Survey Plan they have not been successful. 7. The Defendant has recently closed off the access road and dug trenches intending to construct a high-rise permanent structure across the said easements. This is what has led to the Plaintiff filing the instant suit. 8. The Plaintiff filed this suit vide a Re-Amended Plaint dated 22/08/2023 seeking the following: 9. **A permanent injunction be issued restraining the Defendant his agents, servants and/or employees from taking possession, closing, acquiring or in any other way interfering with the access road/easement existing at the Northern end of plot number LR 13537/104 towards the Nairobi-Thika Super Highway** 10. **That the Juja Sub-County Physical Planner, do insert the said access road/easement in the survey plan map sheet of the area so as to formally/officially reflect the said access road.** **b(i)An order for demolition and removal of any structures erected on the access road to give free movement thereon** 1. **Costs of this suit** 2. **Any other or further relief that this Court may deem fit to grant.** **Defendant’s Case** 1. The Defendant filed a Statement of Defence and denied the content of the Plaintiff’s Plaint and avers that after the subdivision of Juja Ithuri Farm as alleged by the Plaintiff at paragraph 5 of the Plaint, an access road was made adjacent to the plot number LR 13537/104. 2. That he became the registered proprietor of parcel **LR 13537/784 or LR 13537/104/3** sometimes back in August 2012 and as such the Deed Plan of the said property does not disclose any such access road since the plot measure 0.1998 Ha and does not include the impugned access road. 3. That whereas the Ministry cancelled the content of the letter dated 17/10/2005, vide the letter dated 30/04/2008, the Plaintiff never lodged an appeal within 60 days against the decision. 4. That whereas the Plaintiff had obtained a stay vide the **Miscellaneous Judicial Review Application on 14/10/2009**, failure to file a substantive application within 21 days led to the dismissal of the application through the decision in **Nairobi Judicial Review Application Number 51 of 2008, George Mbugua Kirori & 7 Others vs District Physical Planning Officer,** **Thika** by Hon Weldon Korir J on 23/03/2012. 5. The Defendant avers that the suit against him is misconceived and an abuse of the Court process and should be struck out for being *Res Judicata.* Since the dispute was unsuccessfully pursued through the High Court in **Nairobi Judicial Review Application Number 51 of 2008, George Mbugua Kirori & 7 Others vs District Physical Planning Officer, Thika.** 6. Thus, the Defendant denies the jurisdiction of this Court as per **Section 18 & 19** of the Land Registration Act therefore the cause of action does not lie with the Court. 7. The Defendant prays that the suit by the Plaintiff to be dismissed with costs. Further that an order of declaration be made in favour of the Defendant that all that parcel of land known as **LR 13537/784 or LR 13537/104/3** belongs to him plus costs of the suit to be borne by the Plaintiff. 8. The 2nd Defendant did not file any Statement of Defence but they filed Notice of Appointment dated 23/09/2023. **Plaintiff’s Evidence** 1. The suit was first heard on 5/02/2025. The Plaintiff (PW1) testified and adopted his witness statement and produced a list of documents and a further list of documents totaling 12 documents which were adopted as exhibits at pages 20 and 34 of the trial bundle including a third list filed at page 7 bringing the total of the documents filed to 13. 2. In his testimony he reiterated the content he had stated in the Plaint. He stated that despite the stay that had been issued the Defendant continued sealing the place. He also told the Court that his father had authority to represent the other neighbours. He further testified that the letter at page 41 show that the cancellation made by the letter dated 30/04/2008 against the decision that was communicated vide the letter dated 17/10/2005 was erroneous. Since the letter states that the cancellation should have been dealt with by the National Liaison Committee and not the District Liaison Committee who had made the earlier decision which prompted the Judicial Review application. 3. When he was cross-examined, he told the Court that before the Defendant interfered with access there was even electricity poles for power supply. He testified that the road is about 12 meters and that it is not tarmacked. That whereas on the map there is no access to Thika Highway on the ground there is access. 4. He testified that he did not know the 1st Defendant and that he was not aware that the **ELCJR No. 2 of 2018** was not successfully prosecuted by Counsel. He told the Court that he would want the Court to rely on documents at page 10 and pages 36 of the trial bundle. He also stated that he was not aware of any resurvey of the property and a consultation meeting held with residents of the area. 5. Upon re-examination he told the Court that plot number LR 13537/134 and the neighboring plot on the right show there exists a road all the way to the Highway although it is untarmacked. 6. That at the Liaison Committee they deliberated on the fact that part of the 1st Defendant property has access road. That the order of 24/01/2018 revived **ELCJR No. 51 of 2018** which was brought before **ELCJR 2 of 2018** and that there is in fact a Court order. 7. It is his case that the filing of this case was because of the blocking of the road. That even now there is construction going on despite there being a Status Quo Order issued on 11/12/2028. The Defendant proceeded to construct on the suit property and the place is completely sealed off. 8. He told the Court that he was aware that the electricity poles were removed but the construction by the 1st Defendant is still there blocking the access. Further that he is aware that the 2nd Defendant is the successor of the District Planning and Liaison Committee. He concluded by stating that he wishes the prayers sought are granted. 9. With that the Plaintiff closed his case. **Defendant’s Evidence** 1. The 1st Defendant testified as DW1. He adopted his witness statement as his evidence in chief and his list of documents as exhibits which were adopted as “**DW1-Exh 1-3”**. He testified that the suit property LR 13537/104/3 has a building and he started renting it out in 2024. It was his testimony that he has also constructed where the Plaintiff is claiming, that he has rented the spaces meant for business. 2. According to him he acknowledged that he knew that there was an Application filed in Court when he started construction on the suit property. That the pictures at pages 43-45 of the bundle show the situation as it was then. On 6/12/2018 the Court issued a status quo order which also barred construction on the disputed portion of land but he stated that he continued to construct and that he has completed the construction. 3. He testified not remembering whether his Lawyers wrote a letter to Court saying he was not constructing which was dated 09/01/2019 and that he could not explain or remember if the Court decided to deal with the issue of disobedience of the Court order during the hearing of this matter. 4. That paragraph 2 (K) refers to his continuing to construct on the suit property originally the road was not in existence considering the original map. That therefore that is why his neighbors were using an existing road which they used on the ground. The picture at page 43 shows a route which was in existence, a road being used. 5. According to him pages 36-38 of the Plaintiff’s Trial Bundle there is a letter which states that the District Physical Planning Committee cancelled the existing plan to allow a resurvey and plan to create an access road. Paragraph (b) refers to the cancellation and amending of the plan to allow a resurvey and plan to create an access road. 6. That the letter at page 40 and page 41 the District Physical Planning Officers stated that owners of LR 13537/104 should be allowed to subdivide and have their access from the road provided on the map. 7. It was his testimony that he did not know that the law wanted him to Appeal and not go back to the Liaison Committee which cancelled its own decision. That as per Order at page 42 the Applicants got stay orders of the directive issued by the District Physical Planning Officer about the access road as was decreed by LJ Nambuye. Despite the orders of Court on page 29 the Defendant stated that he continued construction because he presented the building plans to the Physical Planning Committee despite knowing that there were cases in Court. 8. He testified that he had filed the approved plans in Court although the letter from Mburu pointed out that he should not continue with approval. He testified that he did not know that going back to the Physical Planning Committee was illegal and that he needed to Appeal. Further he testified not having disrespected the Court and that he was not on the access road. 9. Upon re-examination he stated that he admitted that when he started construction, he used the beacons and touched on the section which is said to be a road but that it was his land. That when the Court issued status quo orders he assumed it meant that he continues with construction. That the parcel upon which he was constructing is where he stayed and he used to pass through Juja Police Station to his parcel and not through Thika Highway since the said properties have no access to the Highway. (The Court pointed out to the Counsel that he was re-examining the witness on a document that does not exist especially on the issue raised at this paragraph). 10. Regarding the case litigated in Nairobi he informed the Court that he was not aware about the case since he was never summoned to appear nor was his Advocate served. Further that when he went to pick his approvals from the department, he was never informed that there was a case in Court and so since 30/04/2022 he continued with the construction since the Liaison Committee had ruled in his favour. 11. At the same time, he stated that he was never informed about the case in Thika as alluded to and when he started construction, he inquired from Kenya Power and Lighting Company (KPLC) about utilization of the portion where they had erected poles on the suit property. It was his case that he never saw any Court order served on him stating that he should not construct. 12. It was his case that he knew that the case in Nairobi had been dismissed for want of prosecution and that the instant case was filed in 2017. That the Applicants filed the instant case when he had already received approvals although he testified that he did not present the said approvals in Court. 13. With that the 1st Defendant closed his case. The second Defendant despite filing a Notice of Appointment did not file a Defence nor attend the hearing in Court. 14. The Court directed parties to file their written submissions. The Plaintiff filed their submissions dated 4/09/2025 and the 1st Defendant filed theirs dated 28/11/2025. I will provide a brief summary of their submissions here-below. **Plaintiff’s Written Submissions.** 1. Vide the Plaintiff’s submissions, he submitted that the matter concerns two adjacent land parcels along the Thika Superhighway, namely LR 13537/141 belonging to the Plaintiff's deceased father and LR 13537/104 belonging to the 1st Defendant, the dispute arising from an access road that was incorporated into the 1st Defendant's land when the Survey Plan Map was made, despite having existed as a public access road prior to the subdivision of the area formerly known as Juja/Ithuri Farm. 2. According to the Plaintiff the affected landowners, including the deceased, petitioned the Ministry of Transport and Communications, which approved the provision of the said access road vide a letter dated 19/07/1997, and on the strength of that approval, the neighbors applied for cancellation of the plan in respect of LR 13537/104 so as to provide for the access road, whereupon the District Physical Planning Liaison Committee, by a letter dated 17/10/2005, approved the same. The Plaintiff has further submitted that a subsequent reversal of that decision by a letter dated 30/04/2008 was fatally defective and of no legal effect whatsoever, as Section 10(2)(e) of the Physical Planning Act Cap 286 (repealed) only empowered a Liaison Committee to hear appeals from decisions of the Director or Local Authorities, and conferred no power upon a Liaison Committee to review or revive its own decisions. 3. Further that the proper recourse available to the 1st Defendant, had he been dissatisfied with the decision of 17/10/2005, was to file an appeal to the National Liaison Committee as provided under Section 15(1) of the said Act, and that accordingly the decision of 17/10/2005 remains the only valid and subsisting decision to date. 4. However, according to the Plaintiff, notwithstanding the existence of a status quo order issued by this Honourable Court on 6/12/2017, the 1st Defendant proceeded to construct a multi-storeyed house on the disputed plot, including on the area designated as an access road, and is presently leasing the said premises to tenants, conduct which the Plaintiff has submitted amounts to blatant contempt of Court and abuse of the process of this Court. The Plaintiff has placed reliance on the Court of Appeal decision in **Langata Development Company Ltd v Mary Wairimu Dames (2011) eKLR 27**, wherein the Court of Appeal held that any change of status of suit land, whether by transfer or taking of possession while litigation is pending, is a nullity and of no legal effect and must be reversed, and that such change of status is an affront to the doctrine of *lis pendens* whose purpose is to maintain the status quo thereby preserving property that is the subject matter of a suit until its determination. The Plaintiff has submitted that the same principle applies with equal force in the present matter, and that any infrastructure erected on the portion of land designated as an access road is ripe for demolition so that the access road can be restored to its original state. 5. The Plaintiff has further submitted, placing reliance on the Supreme Court decision in **SC Petition 8 (E010) of 2021, Dina Management Ltd v County Government of Mombasa**, that registration of title or proprietorship that is obtained without following lawful process cannot confer a good title upon the purported proprietor. Further that a Court of law cannot, on the basis of indefeasibility of title, sanction illegalities and irregularities in the acquisition of that title. 6. Additionally, the Plaintiff has submitted that the Survey Map ought to be rectified to reflect the existence of the access road within part of land parcel LR 13537/104, and that the developments erected thereon in defiance of lawful Court orders ought to be demolished and removed so as to restore the said access road. 7. On the question of costs, the Plaintiff has submitted that pursuant to Section 27(1) of the Civil Procedure Act, costs ought to follow the event, and has accordingly prayed that this Honourable Court allows the suit as per the prayers sought in the Further Amended Plaint dated 22/08/2023, with costs to the Plaintiff. **Defendant’s Submissions** 1. On his part, the 1st Defendant has submitted that the Plaintiff's suit is unmerited and ought to be dismissed with costs, as the core claim that an access road traverses land parcel LR 13537/104 linking the Plaintiff's parcel LR 13537/141 to the Thika-Nairobi Highway is unsupported by any evidence whatsoever. He further states that he is the registered proprietor of LR 13537/104 having acquired title on 8/08/2012, and that his title is absolute and indefeasible under Section 26 of the Land Registration Act, no fraud or misrepresentation having been pleaded or proved against him. 2. Further that no easement has ever been registered against his title as required under Section 98 of the Land Registration Act, and that Section 25 of the same Act protects registered proprietors from unregistered encumbrances of the nature being claimed by the Plaintiff. The 2005 decision of the District Physical Planning Liaison Committee purporting to allow an access road was erroneously made without notice to him and without written reasons, and was lawfully reversed on 30/04/2008 by the District Physical Planning Officer following a hearing at which all parties were present or represented by Counsel, and after reliance on a report by the District Surveyor. 3. The 1st Defendant in his submissions has placed reliance on **Njoki Wainaina v Josephat Thuo Githachuri & 3 Others (ELC 42 of 2020) [2021] KEELC 1553 (KLR)**, where my brother Justice Oguttu upheld the provisions of Sections 37 and 38 of the Limitation of Actions Act Cap 22, holding that a proprietor must prove acquisition of an easement by prescription or grant to merit a vesting order, which the Plaintiff has wholly failed to demonstrate in the present matter. 4. The 1st Defendant states that the reversal of the 2005 decision was procedurally proper and that the Plaintiff's complaint against the same is misconceived, further submitting that the Ministry of Transport's approval of 1997 related to declassification of a road to the Thika-Nairobi Highway and did not amount to the creation of a private easement traversing the 1st Defendant's land. 5. On this issue the 1st Defendant has relied on **Springdew Properties Limited v National Land Commission & another[2020] eKLR**, where the Environment and Land Court at Thika emphasized that administrative decisions must comply with Article 47 of the Constitution, which guarantees every person the right to administrative action. That is expeditious, efficient, lawful, reasonable and procedurally fair, and that failure to abide by the principles of natural justice renders such a decision invalid, submitting that the same principles that demand procedural fairness equally apply to the 2005 decision which was made without according the 1st Defendant the requisite notice and written reasons. 6. It is his further submissions that no current survey plan, deed plan or document prepared under the Survey Act Cap 299 shows any access road on the suit property, and that the Plaintiff's conduct on 7/12/2017 of demolishing part of the perimeter wall and flooding the suit premises constituted a violation of the 1st Defendant's right to property as guaranteed under Article 40 of the Constitution of Kenya. 7. The 1st Defendant has submitted that the present suit is ***Res Judicata*** and an abuse of the process of this Honourable Court, as the core dispute touching on the existence of the alleged access road was conclusively determined by the District Physical Planning Liaison Committee in 2008, and the Judicial Review proceedings in **Nairobi JR Misc Application No. 51 of 2008** arising from the same dispute were dismissed for want of prosecution by Hon. Justice Weldon Korir on 23/03/2012, the Plaintiff having failed to lodge an appeal against the 2008 decision within the sixty (60) days provided under the Physical Planning Act. 8. The 1st Defendant on the above issue has placed reliance on Section 7 of the Civil Procedure Act Cap 21 which bars re-litigation of decided issues, and on the decision in **Dokhole & Another v Usinfecha & 5 Others[2025] eKLR*,*** where Justice Mboya held that the addition of further claims and prayers does not take a dispute outside the purview of *Res Judicata* where the issues mirror those previously canvassed, as well as **George Ochieng Nyakota v Charles Onyango & Another[2018] eKLR*,*** where the High Court at Busia held that a party cannot successfully relitigate an issue of ownership without first successfully challenging the legal process that determined that issue. 9. Additionally he submitted while relying on **Satya Bhama Gandhi v Director of Public Prosecutions & 3 Others[2018] eKLR**, that multiplicity of actions on the same matter between the same parties constitutes an abuse of the process of the Court, and has accordingly prayed that the suit be dismissed under Order 2 Rule 15 of the Civil Procedure Rules as frivolous and vexatious, with costs to the 1st Defendant pursuant to Section 27 of the Civil Procedure Act on the basis that costs must follow the event. **Analysis and Determination** 1. The dispute before this Court centers on the competing interests between the indefeasibility of title under the Land Registration Act and the right of way/easement claimed by a dominant tenement over a servient tenement. The Plaintiff seeks to compel the 2nd Defendant to formalize an access road through the 1st Defendant’s property (LR 13537/104), alleging that the 1st Defendant has obstructed a long-standing path to the Thika-Nairobi Superhighway. 2. Having considered the pleadings, the evidence, and the rival submissions, the following issues emerge for determination: 3. ***Whether the suit is Res Judicata in light of Nairobi JR Misc. Application No. 51 of 2008.*** 4. ***Whether the Plaintiff has established an easement by prescription or necessity over LR 13537/104.*** 5. ***The legal validity of the District Physical Planning Liaison Committee’s decisions of 2005 and 2008.*** 6. ***Whether the 1st Defendant’s construction during the pendency of a status quo order is a nullity under the doctrine of lis pendens.*** 7. ***What final orders should issue?*** 8. On *Res Judicata* and jurisdiction the 1st Defendant argues that the dismissal of **Nairobi JR Misc. App No. 51 of 2008** bars this suit. *Black’s Law Dictionary* defines *Res Judicata* as a matter adjudicated by a competent Court which may not be pursued further by the same parties. However, in **George Ochieng Nyakota v Charles Onyango & Another [2018] eKLR**, it was clarified that for *Res Judicata* to apply under **Section 7 of the Civil Procedure Act**, the matter must have been heard and finally decided on its merits. The Judicial Review application was dismissed for want of prosecution, which is a procedural exit and not an adjudication on the merits of the easement claim. Consequently, this Court is not ousted of jurisdiction. 9. Another issue is the validity of administrative decisions. The Plaintiff relies on a 2005 decision by the Liaison Committee. The 1st Defendant relies on a 2008 reversal. Under the **Physical Planning Act (Repealed)**, a Liaison Committee had no statutory power to review or cancel its own final decisions; it was *functus officio*. As held by the Supreme Court in **Dina Management Ltd v County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR),** administrative actions must follow the law to be valid. If the 2005 decision was validly made, the 2008 reversal by a lower-tier officer was *ultra vires*. Conversely, an easement cannot be created by a mere letter if it is not reflected in the Survey Plan under the Survey Act (Cap 299). 10. There is also the issue of easement by prescription against indefeasibility of title. The 1st Defendant asserts his title is absolute under Section 26 of the Land Registration Act. However, title is held subject to overriding interests. Section 28(e) of the Land Registration Act recognizes rights of way as overriding interests even if not noted on the register. It allows the government or authorized agencies to enter, search, or resume land for public purposes like building roads, laying pipelines, or conducting survey based on other laws, even if you are the registered owner. 11. The Plaintiff claims use since 1987. Under Section 32 of the Limitation of Actions Act, an easement is acquired by peaceable, open, and uninterrupted enjoyment for 20 years. The evidence suggests the road existed on the ground, and even KPLC poles were present, indicating public/semi-public use. 12. On the doctrine *lis pendens* and contempt the 1st Defendant admitted to continuing construction despite there being a Status Quo Order issued on 6/12/2017. The Court of Appeal in **Langata Development Co. Ltd v Mary Wairimu Dames (2011)** held: ***"Any change of status of the suit land while litigation is pending is a nullity."*** 1. The 1st Defendant’s action of racing against the Court to complete a building on a disputed path is an affront to the rule of law. He cannot plead the protection of property rights under Article 40 of the Constitution when those rights were augmented in defiance of a Court order. **Final Disposal Orders:** 1. The Court finds that the Plaintiff has established a right of access that predates the 1st Defendant's title. The 1st Defendant’s interference with the path, especially after the Court order, cannot be sanctioned. 2. Accordingly, the Court makes the following orders: 3. ***A permanent injunction is hereby issued restraining the 1st Defendant, his agents, or servants from interfering with the access road existing on the Northern end of LR 13537/104.*** 4. ***A mandatory injunction is hereby issued compelling the 1st Defendant to demolish and remove, at his own cost, all structures, walls, or trenches obstructing the said access road within sixty (60) days of this Judgment.*** 5. ***In default of Order (2) above, the Plaintiff shall be at liberty to demolish the said obstructions and recover the costs of such demolition from the 1st Defendant.*** 6. ***The 2nd Defendant is hereby directed to amend the Survey Plan Map and relevant records to formally reflect and excise the access road from LR 13537/104.*** 7. ***The costs of this suit are awarded to the Plaintiff, to be borne by the 1st Defendant.*** **DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 19TH DAY OF MAY, 2026.** **………………………** **MOGENI J** **JUDGE** **In the presence of:** Mr. Macharia holding brief for Jesse Kariuki for the Plaintiff Mr. S. K. Waweru for the 1st Defendant 2nd Defendant – Absent Mr. Melita - Court Assistant **………………………** **MOGENI J** **JUDGE**