https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5307

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELCA E026 OF 2025** **SKYLINE HOLDINGS LIMITED....................................................APPELLANT** **-VERSUS-** **1 JAMES KARIUKI WANYAMВА** **2. TELKOM KENYA LIMITED** **3. ATC KENYA OPERATION LTD..........................................RESPONDENTS** ***(An appeal contesting the entire judgment and decree issued by Honourable Caroline K. Obara in the Nyeri Chief Magistrate's Court, Environment and Land Court, Case Number 7 of 2022, dated 5th August 2025).*** **JUDGMENT** 1. The Appellant herein filed an Appeal against the whole Judgment and Decree issued by the Honourable Caroline K. Obara in the Nyeri Chief Magistrate's Court Environment and Land Court Case Number 7 of 2022, dated 5th August, 2025. 2. The Memorandum of Appeal dated 26th August 2025 delineates the following grounds of appeal, namely: 3. **The Learned Senior Principal Magistrate erred in law and fact by failing to hold that there is a nine (9) metre Public Access Road linking the Plaintiffs' Title Numbers AGUTHI/GATITU/ 849 and 1145 to the ten (10) metre trunk road, but which has been completely blocked by the proprietor of Title Number AGUTHI/ GATITU/ 3090 (subdivision of 1146). A miscarriage of Justice was thereby occasioned.** 4. **The Learned trail Magistrate erred in law by disregarding the public map (Registry Index Map (R.I.M)), the detailed report dated 6th June, 2025, by Mr. Daniel Mukiri, the Director of Survey, County Government of Nyeri, and the one dated 6th May, 2024, by the County Land Surveyor, Nyeri, Mr. K.M Kimathi, and Land Registrar, F. Gatonga, which clearly show that there exists a public access road of 9 metres linking title numbers AGUTHI/GATITU/849 and 1145 to the 10-metre trunk road. A miscarriage of justice was thereby occasioned.** 5. **The Learned Trial Magistrate erred in Law in holding that the 9-metre road linking the two (2) plots did not become a public road and that the Land Registrar and the County Surveyor never availed details of the surrender when the 9-metre road is clearly shown in the Survey of Kenya Map (R.I.M).** 6. **The Learned trial magistrate erred in law and fact by holding that "it behoved the Plaintiff, with the assistance of the Land Registrar and Surveyor, to go beyond the Registry Index Map in proving the issue of the access road", even though the Registry Index Map is the final document from the Director of Survey Kenya showing all marked boundaries and roads.** 7. **The Learned trial magistrate erred in law and fact by failing to find and hold that the First Defendant, who is the registered proprietor of Title Number Aguthi/Gatitu/3090 (subdivision of 1146), and the other Defendants have blocked a public access road (the 9-metre road), and by failing to order him to open it.** 8. **The Learned trial magistrate erred in law by holding that the Plaintiff had not proved his case on a balance of probabilities, even though he had discharged this burden.** 9. **The Learned trial magistrate's Judgment is not supported by the evidence on record.** 10. The Appellant respectfully requests that: 11. **The decree and judgment in Nyeri Chief Magistrate's Court Environment and Land Court Case Number 7 of 2022, dated 5th August, 2025, be set aside and replaced with an order allowing the Plaintiff's suit.** 12. **That the costs herein and below be borne by the Respondents.** **Summary of the suit before the Trial Court** 1. The suit before the Trial Court was instituted by way of an Amended Plaint dated 11th March 2022 and amended on 10th November 2022, in which the Plaintiff, who is the Appellant herein, averred that, as at all material times relevant to this suit, the Plaintiff has been the registered owner of LR Aguthi/Gatitu/849. The rear of the Plaintiff's parcel of land has an access road measuring nine metres wide, part of it. 2. The Plaintiff Company also averred that the 1st defendant is the registered owner of LR. AGUTHI/GATITU/3090 and AGUTHI/GATITU/1145, whereas the 2nd defendant has leased LR. AGUTHI/GATITU/3090. 3. The Plaintiff accused the 1st defendant of raising a wall on the access road, mounting a gate and permanent structures thereon, which have completely denied them access, and of also raising a perimeter wall on the rear side of the part of the Plaintiff's plot that opens to the rear access road, leaving it blocked and making access to the aforementioned parcel of land impossible. 4. Further, the Plaintiff averred that the 2nd and 3rd defendants have installed solar panels that encroach upon the said access road and have partially blocked access to the Plaintiff’s parcel of land. 5. The plaintiff’s claim was therefore for an order against the 1st defendant declaring that the raising of the wall, the erection of permanent structures, and the installation of a steel gate on the nine (9) metre access road are irregular. Further, the 1st Defendant should be prohibited from raising the wall further and/or from erecting any structures thereon, and should remove the aforesaid walls, gate and structures, and desist from interfering with the Plaintiff's enjoyment of its property aforesaid. 6. The plaintiff's claim against the 2nd and 3rd Defendants was for an order that the encroachment of the access road by the 2nd Defendant's solar panels is irregular. Further to that, the 2nd Defendant should be ordered to remove the aforesaid solar panels and to desist from interfering with the plaintiff's enjoyment of its property. 7. The Plaintiff prayed specifically for the following orders: 8. **An order that the encroachment and blocking of the 9 meters access road by the defendants is illegal and the said closure be opened forthwith, failure to which the plaintiff be at liberty to engage licensed auctioneers to demolish, unblock and remove all the materials blocking the access road.** 9. **A permanent injunction be issued restraining the defendants from building, erecting, fencing or putting up any other structures to block the 9 meters access road bordering LR. NO. AGUTHI/GATITU/849.** 10. **Costs of the suit and interest at court rates.** 11. **Any other or better relief the Honourable Court may deem fit to grant.** 12. The 1st Defendant filed his statement of defence, admitting that he is the registered owner of LR AGUTHI/GATITU/3090 and AGUTHI/GATITU/1145, and that the 2nd Defendant has leased LR AGUTHI/GATITU/3090 from him. However, the 1st Defendant denied that the Plaintiff's parcel of land has a nine-metre-wide access road at the rear, as alleged. 13. The 1st Defendant also denied that his raised wall, gate and structures have blocked the 9-metre road as alleged 14. Further, the 1st Defendant averred that the Plaintiffs' claim against the 1st Defendant is in bad faith, misplaced, and barred by the Limitation of Actions Act, Cap 22, Laws of Kenya. 15. The 2nd Defendant Company also filed its statement of Defence, denying the allegations in the Plaint and further averring that it has transferred and/or assigned its lease of the said property to ATC Kenya Operations Limited; therefore, it is not responsible for the alleged encroachment and blockage (if any). 16. The 3rd Defendant also filed their statement of defence, denying that their mounted transmission booster and the installed Solar Panels on the 1st Defendant's land have encroached onto the access road or blocked the Plaintiff from accessing its Parcel of Land. The 3rd Defendant confirmed the presence of a Base Transceiver Station but denied that it had encroached onto any of the parties’ Land. 17. The hearing of the suit began on 28th November 2023, when PW 1, Isaac King’ori, Director of the Plaintiff, gave his evidence, adopting his witness statement and the bundle of documents as his evidence in chief. In his witness statement, he reiterated the contents of his Plaint, namely that due to the Defendants’ blockage of the public road that is supposed to provide access to his land, the following services cannot be provided: (a) Sewerage services. (b) Storm Water disposal. (c) Rear entry in and out of the plot. 1. That this blockage has caused immense inconvenience and unnecessary expenses, and is bound to render the development of their land economically unviable. 2. Upon cross-examination, the Plaintiff stated that he was using only the front exit at the time and that he was unaware of any approval for the 1st Defendant to construct on the road. 3. PW 1 denied that the rear exit on his lands leads to a dead end, stating that it leads to rear easements. He also stated that to access the solar panels, one must go through the rear gate, which has limited the setting up of the sewage system. 4. **PW 2** was **Daniel Maina Mukiri,** County Surveyor of Nyeri. He produced his survey report dated 6th June 2023 as his evidence in chief. He summarised it, stating that his findings are that there is a public access road on the suit property, noting that it is also in the mutation dividing Parcel Numbers 1146 and 1145. That Parcel 1146 was further subdivided to create 3090 and 3091. 5. PW 2 testified that the road width is well established at 9 metres, noting that there are legal procedures for extinguishing a road, which have not been followed in this case. 6. On cross-examination, PW 2 stated that the 1st Defendant wrote to the County seeking a meeting over the dispute, but the meeting never took off. He stated that he visited the locus in quo and found a dead-end road, while the access road on the map is connected to a trunk road, which is a public road. 7. On re-examination, he stated that there was no need to involve the Land Registrar, as this was their domain. 8. The Defence hearing proceeded on 26 March 2024, and DW 1, the 1st Defendant, adopted his witness statement as his evidence in chief, as well as his bundle of documents. In his statement, DW 1 averred that he has been the owner of plots 3090 (formerly 1146) and 1145 for the past 26 years and that there is no road between them. 9. That 26 years after DW 1 purchased the 2 parcels and 46 years after the subdivision, in December 2021, he found demolition markings on his gate and an enforcement notice from the Nyeri County Government stating that he had encroached on a public road of access. He appealed against the enforcement and supported my appeal with the attached memorandum, which was received by the Physical Planning Department. 10. He stated that when the original Plot 850 was subdivided, Salim bin Hamisi, who owned Plots 1145 and 3090 (which he later bought from his successor), created a space between his two plots to separate his two wives, with each wife receiving one of the parcels. That the space between was never intended to be a road and has never been one, as the original owner never surrendered such a road. 11. He added in Court that the Plaintiff had not yet come onto the land when he received the approvals to construct. He said he was summoned by a Notice alleging that he had blocked the Plaintiff. He appeared but was never called to defend his position. 12. On cross-examination, DW 1 denied any encroachment, stating that the free area has been a farm and has never been surrendered or used, and that the Plaintiff accesses his home via the main road. 13. DW 2, Stephen Kathaya Kamau, Land Surveyor, produced his report dated 13th October 2023 as his evidence in chief. He requested that the Court visit the site locus in quo. 14. On cross-examination, DW 2 stated that he is an approved survey assistant with Homeland Surveyors and is not a licensed surveyor. He further stated that the access road does not physically exist on the ground, and that the boundaries of LR 1149 and 3090 do not touch each other. 15. On further cross-examination, he stated that, according to the map, there is a road between LRs 1145 and 3090, a private access road created around 1976 when the owner of LR 850 subdivided the land. He added that entry no. 10 of the Registry Index Map states that a road was created to serve Land Parcels 1142-1147. 16. DW 3, Nelson Mogaka, Legal Manager for the 2nd Defendant, adopted his witness statement dated 18th October 2022 and the bundle of documents dated 21st October 2022 as his evidence in chief. Therein, he stated that he was aware that on 13th August 2019 the 2nd Defendant transferred and/or assigned its lease over L.R Aguthi/Gatitu/3090 to ATC Kenya Operations Limited. 17. Thus, he states that the 2nd Defendant is no longer in occupation and use of L.R Aguthi/Gatitu/3090. Therefore, there is no way the 2nd Defendant could have encroached on the Plaintiff's adjacent property, blocked any access road, or interfered with the enjoyment of the Plaintiff's property. He stated that a gazette notice existed for the transfer of assets from Telkom Communications, the 2nd Defendant. 18. On cross-examination, he stated that when they signed the assignment of lease, there had been no prior boundary dispute until they were served with these pleadings. He also stated that before any mast is erected, they must obtain approvals from the National Environment Management Authority (NEMA) and Kenya Civil Aviation. 19. Summons were issued to the Land Registrar, Nyeri, and Francis Gatunga Wamuyu duly appeared in Court on 6th May 2025. He confirmed that he was present with the persons who prepared the report dated 6th May 2024 and that he adopted it as evidence in chief. 20. On cross-examination, he stated that there is a public access road, which is recorded as such in the Registry Map. That Parcel number 849 is landlocked by virtue of the gate erected, and there is an encroachment on the public access road. 21. Further, he stated that all adjacent parcels and members of the public are permitted to use the access road, and that the road was intended to serve parcels 849 and 1145. 22. The Trial Court delivered judgment on the 5th of August 2025. The Court found that the survey report produced on behalf of the plaintiff did not show that the disputed road is a public access road. The Court further found that the Plaintiff, with the assistance of the Land Registrar and Surveyor, should have gone beyond the Registry Index Map to prove the issue of the public access road, but failed to discharge the burden. Accordingly, the Trial Court dismissed the Plaintiff’s case with costs. 23. It is this decision from which the Appellant seeks an Appeal. 24. All parties herein filed their written submissions, which the Court has duly read and considered. **Analysis and determination** 1. The function of a first appellate court was concisely articulated in the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR**, and was summarised as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”*** 1. Having considered the Memorandum and Record of Appeal, as well as the rival submissions, it appears that the suit before the Trial Court was dismissed for the Plaintiff’s failure to discharge his burden of proof; accordingly, the issues for determination raised herein can be condensed into whether the Trial Court erred in dismissing the Appellants’ case on this ground. 2. The subject matter of this suit is the Appellant’s claim that a public access road servicing the rear end of his land parcel, known as LR. Aguthi/Gatitu/849, has been obstructed by the erection of permanent structures there. The Plaintiff relied primarily on the Surveyor’s Report dated 6th June 2023, signed by Daniel Maina Mukiri, Director of Land & Surveys for the County Government of Nyeri. In the said report, the findings were that there is a well-indicated public access road on the Registry Index Map measuring 9 metres, linking land parcel 849 registered to the Plaintiff and LR 1145 registered to the 1st Defendant, which has been completely blocked by the proprietor of LR 3090, who is also the 1st Defendant herein, with permanent structures and a metallic gate. That the County Government of Nyeri has already marked the extent of the said structures. 3. The Public Roads and Roads of Access Act Cap. 399 of the Laws of Kenya governs public access roads. Section 9 thereof states as follows. ***“(1)Where any owner or occupier of land is in respect of his land so situated in relation to a public road which is passable to vehicular traffic, or to a railway station or halt, that he has not reasonable access to the same, he may make application to the board of the district in which such land is situate for leave to construct a road or roads (hereinafter called a road of access) over any lands lying between his land and such public road or railway station or halt, and every such application shall be made in duplicate in the form and contain the particulars required by the First Schedule to this Act: Provided that, if the applicant is unable to make the sketch plan mentioned in the said Schedule without entering upon the lands over which he proposes that the road of access is to pass, he may apply to the board for leave to enter upon the said lands for the purpose of making the said sketch plan and the board may then make an order entitling the applicant to enter on the said lands.*** ***(2) Any owner or occupier of lands who has constructed a road in circumstances which did not require the making of an application under subsection (1) of this section may make application to the board of the district in which the road is situated for a declaration that the road is a road of access, and for the registration of the road of access as though an order had been made under section 11 of this Act.*** ***(3) Every such application shall be accompanied by such fees as the Minister may prescribe, and the board shall not be obliged to proceed upon any such application except upon payment of such fees.”*** 1. Further, Section 24 of the Land Registration Act CAP 300 reads as follows: ***Subject to this Act—*** ***(a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and*** ***(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.”*** 1. A public access road falls within an implied and express right and privilege in land and is intended for the use and benefit of not only a proprietor but also the public, and its use ought not to be restricted. The Court of Appeal in the case of **County Government of Meru v Mukuchia & 11 others (Civil Appeal 218 of 2019) [2025] KECA 2289 (KLR)** found as follows: ***“Blocking historically recognized public roads without due process or public participation violates principles of accountability and inclusivity enshrined in Articles 10 and 62 of the Constitution. The trial court’s findings, based on uncontested evidence from scene visits and the respondents’ evidence in the trial court, underscore the critical role of these roads in providing access to homes, public services, and economic opportunities.*** 1. The ELC (Yano J.) in **Kunani (Suing as the legal representatives & administrator of the Estate of the Late Wilson Yego) v Yego (Land Case E055 of 2024) [2026] KEELC 2262 (KLR) (23 April 2026) (Judgment)** held that: ***“The Defendant has no right to deal with the public access road in a manner inconsistent with the purposes for which it was intended. The Defendant’s occupation of the public road and utilisation thereof is thus unlawful.*** ***There is no doubt that the Plaintiff is affected by the Defendant’s conversion of the said access road to farming. Guided by the above decision and in the interest of justice, I find the Plaintiff’s claim in this suit are merited. The court directs the Defendant to vacate the public road subject of this suit, and further cease his activities thereon.”*** 1. The Trial Court found that the Appellant herein had not proven his case to the required standard. The Appellant relied on the Government Surveyor’s Report dated 6th June 2023, prepared and signed by Daniel Maina Mukiri, Director of Land & Surveys for the County Government of Nyeri. The Land Registrar also testified and confirmed that he was present at the scene visit, during which they referred to the Registry Index Map and found that there was indeed a public access road measuring 9 metres, intended to serve the parties’ suit properties, which had been completely blocked by the 1st Respondent herein. 2. Section 15 of the Land Registration Act Cap 300 refers to general maps known as cadastral maps, mandating that the office or authority responsible for land surveying prepare and thereafter maintain a map or series of maps, to be known as the cadastral map, for every registration unit. The Registry Index Map (RIM) is the physical or digital graphical map sheet you obtain from the Survey of Kenya for general boundaries. It functions as the index map component of Kenya's overall cadastral system. 3. Therefore, in my considered view, the production of this report, which referenced the Registry Index Map, was sufficient evidence that there was an access road to the suit properties, whether public or not, and that there was encroachment and blockage of the public access road. The government officials even went ahead and marked the gate constructed by the 1st Defendant for demolition. 4. Further, in my humble view, the Appellant discharged their burden of proof on the balance of probabilities as required. In discussing the burden of proof in civil cases, the Court of Appeal in the case of **Mumbi M'Nabea v David M.Wachira [2016] KECA 773 (KLR)** held as follows: ***“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.”*** 1. The Appellant proved, through the evidence of expert government officials, namely the County Director of Survey and the County Land Registrar, that the 1st Respondent blocked an access road. The Respondents brought no contrary evidence. The Court of Appeal in the case of **SYT v TA (2019) KECA 374(KLR)** cited a passage from its decision as follows: ***“The Court of Appeal in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros V. Augustine Munyao Kioko, Civil Appeal No. 203 of 2001 [2007] 1 EA 139 said that;*** ***“.... such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion, and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”*** 1. In my considered view, there was no basis to question or reject the evidence of the Government expert witnesses, who hold the land records. I am therefore of the opinion that the Trial Court erred in dismissing the Appellant’s case and that the current Appeal ought to be allowed, with a specific order for the Government County Surveyor and Land Registrar to confirm the extent of encroachment on the site and identify which structures the 1st and 3rd Respondents ought to remove to restore the access road. 2. The Appellant did not have a cause of action against the 2nd Respondent herein, as they are no longer a lessee of the 1st Respondent’s property; therefore, the suit against them ought to be struck out. 3. Consequently, the court allows the current appeal and substitutes the Lower Courts' findings as follows: 4. **An order is hereby made that the encroachment and blocking of the 9-metre access road by the 1st Defendant (1st Respondent) are illegal, and that the said closure be opened forthwith (in any event, within 30 days of this judgment). Failure to do so shall entitle the Plaintiff (Appellant) to engage licensed auctioneers to demolish, unblock and remove all materials blocking the access road.** 5. **The Government County Surveyor and Land Registrar to confirm the extent of encroachment on the site and identify which structures the 1st and 3rd Respondents ought to remove to restore the access road in compliance with (a) above, within 30 days of this judgment.** 6. **A permanent injunction be and is hereby issued restraining the 1st Defendant (1st Respondent) from building, erecting, fencing or putting up any other structures to block the 9-metre access road bordering LR. NO. AGUTHI/GATITU/849.** 7. **The Suit against 2nd Defendant (2nd Respondent) struck out with costs to be borne by 1st Defendant (1st Respondent)** 8. **Costs of this appeal and that of the court below be borne by the 1st Defendant (Respondent) with interest at court rates.** **Dated, signed, and delivered virtually at Nyeri on this 5th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Ms. Njuguna for the Appellant** **Mr. Kariuki for the 1st Respondent** **Mr. Mouo for the 2nd Respondent.** **Mr Ndolo for the 3rd Respondent.** **Denis - Court Assistant**