[2010] KEHC 3017 (KLR)
The court found that the applicant had established a credible claim that an access road to her property existed prior to its closure by the respondents. The court accepted the applicant's evidence that the road was not newly created but was an existing means of access, and that its closure adversely affected her...
Source-derived case information.
- Citation
- [2010] KEHC 3017 (KLR)
- Parties
- Appellant: Tom Laban Keya; Appellant: Brigid Maleya; Respondent: Christine Ongayo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 14 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application Pending Appeal
- Outcome
- Application granted as prayed. Costs in the cause.
- Legal Topics
- Access Road Disputes, Interlocutory Injunctions, Land Survey and Demarcation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Laban Keya
Appellant
Brigid Maleya
Appellant
Christine Ongayo
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order compelling the respondents to open the access road to her property pending appeal.
- 2 Whether the closure of the access road was justified or lawful.
- 3 Whether the court should maintain the status quo or grant interim relief.
Ratio Decidendi
The court found that the applicant had established a credible claim that an access road to her property existed prior to its closure by the respondents. The court accepted the applicant's evidence that the road was not newly created but was an existing means of access, and that its closure adversely affected her operations, particularly the running of a nursery school. The court held that the appropriate course was to grant interim relief by compelling the respondents to open the access road, pending the outcome of the appeal and the completion of a proper survey and demarcation by the District Surveyor. The court emphasized that this order preserved the status quo and protected the...
Court Disposition
Application granted as prayed. Costs in the cause.
Orders
- The respondents are compelled to open the access road leading to the applicant's plot No. BUTSOTSO/SHIKOTI/7293 pending the hearing and determination of the appeal.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Appeal 14 of 2009
TOM LABAN KEYA ……………………………………… 1ST APPELLANT
BRIGID MALEYA ..……………………………………… 2ND APPELLANT
V E R S U S
CHRISTINE ONGAYO ……………………………………. RESPONDENT
R U L I N G
In her application dated 25th September, 2009, the applicant, Christine Ongayo is seeking orders that the respondent be compelled to open the access road leading to her plot No. BUTSOTSO/SHIKOTI/7293 pending the hearing and determination of the appeal. The application is supported by her affidavit sworn on25th September, 2009.
The applicant’s contention is that the access road leads to her plot where she has built a nursery school and students and teachers use the road. The respondents closed the road without informing her and they have fenced off the road. The appeal Tribunal held in her favour and the respondents appealed.
Mr. Kiveu for the respondents opposed the application. Counsel submitted that the appeals Tribunal did not deliberate on the issue of access road. There is another access road to the applicant’s property. The respondents filed an application on 12th October, 2009seeking to vacate the interim orders granted on1st October, 2009.
The applicant states that she operates a school by the name SELINE ACADEMY and that the access road was there before it was closed. From the proceedings of the Western Provincial Land Disputes Appeal Tribunal, the verdict was that the surveyors do re-survey and determine the correct measurements of parcels Nos. BUTSOTSO/SHIKOTI/7292, 7293, 2954 and 5712. The applicant contends that before that was done the respondents appealed and fenced off the access road.
I do find that the applicant has established a proper claim against the respondent. Her allegation that there was an access road before it was fenced off sounds believable. This is not a creation of a new road but the right to use an existing road. The best way to solve the problem is for the District Surveyor to carry out proper surveys and demarcate the access roads.
In the circumstances, the applicant’s application dated 25th September, 2009 is granted as prayed. Costs shall be in the cause.
Delivered, dated and counter signed at Kakamega this 16th day of March, 2010
SAID J. CHITEMBWE
J U D G E