https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5304

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISII** **ELC CASE NO. E010 OF 2026** PETER MIGIRO NYAENYA ...................... PLAINTIFF/APPLICANT -VERSUS- FRANCIS NYANG’AU ...................... DEFENDANT/RESPONDENT **RULING** 1. For determination is the Plaintiff’s Application through a Notice of Motion dated April 28, 2026. The Plaintiff is seeking orders as follows: 1. **spent** 2. **spent** 3. **Spent** 4. *THAT pending the hearing and determination of the suit herein, an interlocutory injunctive order be granted directing the Defendant/Respondent, his agent, servants and/or any person claiming through or under him to forthwith open and/or remove all and any obstruction imposed or erected on the access road for ingress and egress to and from the dominant land known as land parcel no. Wanjare/Bomorenda/2791 through the Defendant/Respondent’s parcel of servient land known as land parcel no. Wanjare/Bomorenda/2103 on to the public road known as Asumbi road.* 5. *THAT an order be granted that in default of the Defendant/Respondent complying within 24 from the time of issuance of any order issued under prayers (3) and (4) above, the Plaintiff/Applicant do remove the same and the costs thereof be borne by the Defendant/Respondent.* 6. *THAT a further order be granted that the implementation of the orders granted herein be supervised by the Chief Bomorenda location and the Officer Commanding Station (OCS) at Suneka Police Station.* 7. *Such other and/or further orders as this honourable Court may deem fit to grant.* 8. *The costs of this application be provided for by the Defendant/Respondent.* 2. The application is supported by Affidavit of the applicant sworn on April 26, 2026,and the grounds stated on the face of the Notice of Motion. The Applicant deposes that he is the registered proprietor of land parcel no. **WANJARE/BOMORENDA/2103** (hereinafter the “**Plaintiff’s Land**”). He lives on the said land having bought it around the year 2000 from one Victoria Nyataaya. 3. The Applicant avers that access to his land is through a road that is demarcated and adjacent to the Respondent’s land known as parcel number **WANJARE/BOMORENDA/2103** (hereinafter the “**Defendant’s Land**”). He asserts that he was shown this access road by the vendor at the time of purchase in the year 2000. 4. The Applicant further deposes that since he purchased the land, he has been continuously, peacefully, and openly using the access road until sometime in March, 2026, when the Respondent objected to his continued use of the road. To further the objection, the Respondent removed the boundary that delineated the his (respondent’s) land and the access road, effectively obstructing and closing the access road to the Applicant’s land. 5. The Plaintiff/Applicant asserts that by reason of his long, continuous, open, and unchallenged use of the access road measuring by approximation 5 meters in width by 110 meters in length, an easement over the Respondent’s land in the nature of a right of way crystallized. Therefore, it is unlawful for the Respondent to consolidate the access road as part of his land. 6. In opposition to the application, the Respondent filed a Replying Affidavit, sworn on 27th May 2026. He asserts that the access road claimed by the Applicant forms part of his land and has never been designated as a public road. The Respondent annexed a Survey Map to his Affidavit, indicating that there is a designated access road from the Applicant’s land to the main road. 7. The Defendant/Respondent further states that the Applicant’s interest in using the access road through the Defendant’s land is purely a matter of preference and convenience. If the Plaintiff ever used the access road through his land, it was with his (Respondent’s) permission, and therefore such use did not create any legal entitlement to an easement or any overriding interest in favour of the Plaintiff. 8. The Respondent further swears that the fence erected on his land is for the security of his family and property, consistent with his constitutional proprietary rights. He further asserts that the Plaintiff has not demonstrated special circumstances that warrant the grant of a mandatory injunction at the interlocutory stage and urges the Court to deny the orders sought. 9. In response, the applicant filed a Further Affidavit, sworn on 19th June, 2026, reasserting that he has, for the past 26 years, continuously used the access road through the Respondent’s land, together with proprietors of other adjacent lands. He states that, at no time throughout this period, has he received permission from the Respondent to use the impugned access road. 10. He has also annexed the County Surveyor's report, which concluded that there is an existing but currently closed access road that has long served the Plaintiff’s Land. The report also states that an access road intended to serve the Applicant and other lands is shown on the survey map, but it does not exist on the ground because the proprietors of parcel numbers 2103, 2874, and 2873 have built permanent houses on the road. This leaves the Applicant without any ingress or egress. 11. In a Supplementary Affidavit dated 25th June, 2026, the Respondent states that when the Applicant purchased his land in 2000, the permanent structures indicated in the Survey Report as being on the designated access road were not present. These structures were erected with the Applicant's knowledge, yet it appears he has never objected to their encroachment onto the access road. In any case, the Respondent submits that the Applicant’s remedy lies against those who have built on the access road designated for his land. 12. The Respondent states that in 2000, 2016, and even recently, he allowed the Applicant to use the impugned access road at the Applicant’s request to transport construction materials. The access granted by the Defendant to the Plaintiff was subject to the agreement that the Defendant would close the access road upon completion of the intended purpose. 13. Contrary to the Applicant’s assertion that the status quo to be maintained is the one that has prevailed over the past 26 years, the Respondent asserts that the status quo to be maintained is the one prevailing at the time the suit and application were filed. At that time (the Plaint is dated April 28, 2026), he had already closed the access road. **Submissions:** 1. The application was heard by way of written submissions. The Plaintiff filed his written submissions on 24th June 2026, which were highlighted on 7th July 2026. Mr Bosire for the Applicant identified two issues for determination: (i) whether a mandatory injunction can be granted at an interlocutory stage, and (ii) whether the application is merited. 2. On the first issued, Mr. Bosire cited the cases of **Kuria & 3 Others v Muriith & Another [2026] KEELC 1941 (KLR)** and **Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] eKLR**, in support of his submission that the Defendant’s closure of the access road previously used by the Plaintiff warrants grant of an interlocutory mandatory injunction. 3. The two cases cited acknowledge that a mandatory injunction is to be refused unless the applicant can demonstrate special circumstances that would compel the Court to issue such an injunction, or if the case is clear and the Court deems it appropriate to grant a mandatory injunction. Particularly, the cases cited establish that there ought to be *prima facie* proof that the party against whom the mandatory injunction is sought is in the wrong. 4. On the second issue, the Applicant’s Counsel submits that the application is merited because the Plaintiff’s case has met the principles governing grant of interlocutory injunctions as settled in **Giella v Cassman Brown & Co. Limited [1973] E.A. 358**, and further refined in **Mrao Limited v First American Bank of Kenya Limited & 2 Others [2003] eKLR**. 5. On the strength of the Court’s decision in Mrao Limited (*supra),* Counsel submits that a *prima facie* case has been established by the Applicant since the Applicant has shown the Defendant’s obstruction of an access road connecting the Plaintiff’s land to the main road through the Defendant’s Land. Counsel further places reliance on **Section 32(2) of the Limitation of Actions Act Cap. 22 Laws of Kenya** in his argument that an easement in favour of the Plaintiff’s Land has crystallized against the Defendant’s Land, because the Plaintiff has been peacefully, uninterrupted, and openly using the access road since the year 2000. 6. He urges that the potential existence of another access road from the Plaintiff’s Land to the main road does not invalidate the Plaintiff’s right to use the access road he has been using over the past 26 years, which has now crystallized as an easement and/or right of way over the Defendant’s Land. On this basis, it is submitted that a prima facie case with a probability of success has been established. 7. On irreparable harm and balance of convenience, Mr. Bosire submits that the Plaintiff’s lack of access to his family home as occasioned by the Defendant’s actions shall cause irreparable loss and harm to the Plaintiff. He submits that a person’s deprivation of their usual residence or quiet enjoyment thereof is not merely a pecuniary loss. 8. Counsel further submits that since the Plaintiff has been using the access road for the past 26 years and he is currently without proper means of access to his land, he will suffer more harm if the access road is not re-opened in comparison to what the Defendant may suffer if the road is re-opened. Therefore, balance of convenience in the matter tilts in favour of the Plaintiff. 9. Mr. Otieno, Counsel for the Defendant, argues that the Plaintiff has admitted that the closure of the access road occurred in March 2026 while the present suit was only instituted in May 2026. Over and above the delay in instituting the suit, Counsel submitted that the events complained of by the Plaintiff have already occurred; thus, the Court cannot injunct what has already happened. 10. On the grant of mandatory injunctions, Counsel submitted that the Plaintiff has not shown the peculiar circumstances of his case that warrant a mandatory injunction against the Defendant. He states that the Plaintiff’s allegations of an existing medical condition that necessitates proper access to his house have not been supported by any evidence. He adds that in any case, the Plaintiff has not disclosed to the Court the road that they have been using since March 2026 when the impugned access road was obstructed. 11. As regards the survey report, Counsel submits that the Surveyor has confirmed that there is indeed another access road to the Plaintiff’s Land, just that it has been encroached upon by third parties. On who, between the Plaintiff and the Defendant, will suffer more prejudice, Mr. Otieno submits that the Plaintiff will not be prejudiced if the access road remains closed, while the Defendant will suffer prejudice by reason of denial of his right to use his land, contrary to Article 40 of the Constitution of Kenya. He states that the Defendant has already planted crops on the part that used to be the access road. **ISSUES FOR DETERMINATION** 1. Having read the application, the reply, the further and supplementary affidavits, and the parties’ submissions, I proceed to determine the questions: 1. Whether the Plaintiff’s application is merited. 2. Who is to bear the costs of this application. **ANALYSIS** 1. The Applicant’s substantive prayer is the equitable remedy of an interlocutory injunction directing the Defendant to remove any and all obstruction on the access road leading from his land to the main road known as Asumbi Road through the Respondent’s land. It is, in effect, a request for a mandatory injunction at an interlocutory stage. 2. The guiding principles set in **Giella v. Cassman Brown Limited [1973] E.A. 358** on the grant of interlocutory injunctions are instructive in this case. The principles are as follows: 1. The applicant must establish a prima facie case with a probability of success. 2. An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury. 3. When the Court is in doubt, it will decide the application on a balance of convenience. 3. Regarding whether the Applicant has established a prima facie case with a probability of success, in his supporting and further affidavits he deposes that there has been an access road to his land through the Respondent’s Land. The Respondent admits the Applicant's use of the impugned access and affirms that he fenced off the road in March 2026. 4. The Respondent argues that the Applicant has an alternative road shown on the map of the two suit portions. The Applicant produced a Survey Report indicating that the access road shown on the map is blocked by permanent buildings on the ground. Thus, the Applicant has demonstrated that he has been left without any other means of access to his home following the closure of the only access road available to him. 5. It is the Applicant's case that he has been using the access road since 2000 until it was closed by the Defendant on 24th April, 2026. He therefore argues that by operation of **Section 32 of the Limitation of Actions Act Cap. 22 Laws of Kenya**, he has acquired an easement over the Defendant’s Land in the nature of a right of way. 6. The Respondent challenged the claim stating that the Applicant’s use of the access road has always been with his permission. That there have also been previous disputes between the parties regarding the Applicant’s use of the access road, which disputes potentially reset or nullify the 20-year statutory requirement for accrual of an easement. 7. These contestations, in my opinion and I so hold, demonstrate the Applicant has proved the existence of a prima facie case. I am guided by the decision in **Mrao Limited V. First American Bank of Kenya Limited & 2 Others [2003] KLR 125,** holding that, **“*a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”*** 1. The second issue is whether the loss suffered, or likely to be suffered, by the Applicant is compensable by way of damages. In his further affidavit, the Applicant deposes that obstruction of the access road has caused him and his family to feel insecure when passing through thick bush to reach their home. Additionally, (though challenged by the Respondent for lack of supporting evidence), the Applicant avers that he cannot use a motor vehicle to and from his home, which may cause unreasonable delay in accessing urgent medical attention he needs. 2. In my view, the nature of the harm occasioned to the Applicant as a result of the closure of the access road cannot be adequately compensated by way of damages. Proper and adequate means of access to one’s land is an essential and intrinsic component of proprietorship in land and should not be extinguished before allowing time to source an alternative road, if at all. 3. The Respondent argued that he will suffer loss if the orders sought are granted, as this would violate his Article 40 rights. However, the Applicant seeks to sustain what has existed before, implying that the Respondent had not been utilising the suit portion. Weighing his loss over a further period required to hear the case on the merits, and refusing the orders, it is my considered view that the balance tilts in favour of the Applicant being granted the orders sought. 4. As acknowledged by both parties, a mandatory injunction at an interlocutory stage must be proved on a higher standard than a temporary injunction. To succeed, the Applicant must meet the standard as stated by the Court of Appeal in **Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR).** Thus: ***“The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948 which reads:*** ***“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”.*** ***Also in Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:- “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction***.” 1. The Applicant’s claim is founded on **Section 32 of the Limitation of Actions Act, Cap. 22**, alleging continuous, open, and peaceable use of the access road for over 20 years. The Plaintiff argues that he has acquired a prescriptive easement over the Respondent’s land. 2. **Section 32(1)(c) of the Limitation of Actions Act, Cap. 22** provides as follows: “(***1) Where— ...*** ***(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.*** 1. The Applicant has demonstrated that he has been utilising the road passing through the Respondent’s land over time, and the Respondent avers in his supplementary affidavit that this use was with his permission; hence no prescriptive rights can accrue. Therefore, the nature of the claim is clear, and the special circumstance is the consequences the Applicant is suffering as a result of the obstruction of the impugned road. 2. In conclusion, having analysed the facts provided by either side, I hold that there is merit in the application. The Respondent’s argument that the status quo to be maintained is the one existing at the time of filing this application, if allowed, will render the application nugatory. I have already stated the reasons why the balance of convenience tilts in favour of the Applicant. 3. As a result, I allow the application and issue the following orders: 1. *THAT pending the hearing and determination of the suit herein, an interlocutory injunctive order is granted directing the Defendant/Respondent, his agent, servants and/or any person claiming through or under him to forthwith open and/or remove all and any obstruction imposed or erected on the access road for ingress and egress to and from the dominant land known as land parcel no. Wanjare/Bomorenda/2791 through the Defendant/Respondent’s parcel of servient land known as land parcel no. Wanjare/Bomorenda/2103 onto the public road known as Asumbi Road.* 2. *THAT an order be granted that in default of the Defendant/Respondent complying within 7 days from the date of this ruling, the Plaintiff/Applicant do remove the same at his own costs.* 3. *THAT a further order is granted that the implementation of the order (a) and/or (b) above herein be supervised by the Chief Bomorenda location and the Officer Commanding Station (OCS) at Suneka Police Station.* 4. *The costs of this application abide the winner of the suit.* **Dated, signed and delivered virtually this 12th day of August, 2026.** * + 1. **OMOLLO** **JUDGE**