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ELCPartially AllowedKisumu ELC Case of 2015 (Plaint dated 16th November 2015)

Nyambati & 2 others v Okere & 4 others (Environment and Land Case 314 of 2015) [2025] KEELC 6662 (KLR)

Environment and Land Court
2 October 2025
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu stopped neighbours from opening an access road through private land and ordered officials to resurvey the area.

What this practically means

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Executive summary

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Three plaintiffs, purchasers from the 3rd Plaintiff's original parcel Kisumu/Kasule/1571, sued the Defendants alleging that the 1st, 2nd and 3rd Defendants were interfering with, or threatening to create, a public access road where none exists, endangering the 1st and 2nd Plaintiffs' multistorey residential and commercial buildings on Kisumu/Kasule/4240. They sought a permanent injunction and an order compelling the Land Registrar and Surveyor to establish on site the proper boundaries, beacons and extent of the access road. The 1st and 3rd Defendants denied the claim and argued that the plaintiffs had not proved interference on a balance of probabilities and that the Public Road and Road Access Act, Cap 399, coupled with the exhaustion doctrine, ousted the court's jurisdiction over access road disputes. The 4th and 5th Defendants (State) relied on the Land Registrar's report and submitted that all parcels were already serviced by access roads and that where a map disagrees with the ground, the map must be amended. Evidence established a divergence between the Registry Index Map and the ground position, and that the 3rd Defendant planned to open a road per the map without notice to the plaintiffs or following the correct procedure. The court found the 1st and 2nd Plaintiffs had proved their case and entered judgment against the 1st and 3rd Defendants in terms of prayers (a) and (b) of the plaint. The case against the 2nd Defendant had abated on his death, no relief lay against the 3rd Plaintiff, and each party was ordered to bear its own costs, the parties being neighbours. Judgment dated 2nd October 2025, delivered virtually by E. Asati, Judge, at Kisumu.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether or not the Plaintiffs have proved their claim on a balance of probabilities
  2. 2.whether or not the plaintiffs are entitled to the relief sought
  3. 3.costs

Key legal issues

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01

Whether the plaintiffs proved trespass/in threatened interference with their land on a balance of probabilities

Holding

Yes; the 1st and 2nd Plaintiffs proved their claim against the 1st and 3rd Defendants, entitling them to a permanent injunction

Reasoning

The 3rd Defendant's surveyor (DW2) admitted that the County Government was creating a road of access per the map which could interfere with the plaintiffs' land, without notice to them and without following the correct procedure. The claim that the plaintiffs' property would be destroyed was not denied. A title deed and official search proved the 1st Plaintiff's ownership. The property was therefore at risk of being wasted by the 3rd Defendant.

p. 6
02

Whether an order should issue compelling the Land Registrar and Surveyor to establish the position of the access road on the ground

Holding

Yes; prayer (b) was merited because the ground position differs from the map and the 1st Defendant's land does not even appear on the map

Reasoning

It was common ground that the position of the suit lands on the ground differs from the map, and that the 1st Defendant's land is not reflected on the Registry Index Map. The court accepted that the map must be rectified to align with the ground and that a resurvey would benefit other neighbours with a similar problem.

p. 6
03

Whether the Public Roads and Road Access Act ousts the court's jurisdiction over the access road dispute under the exhaustion doctrine

Holding

The objection did not prevail; the court entertained the claim and granted relief including the resurvey order

Reasoning

The 1st and 3rd Defendants argued that the Act ousts the court's jurisdiction and that the plaintiffs ought first to have applied to the District Roads Board. The judgment does not record any finding upholding this objection; instead the court went on to grant prayer (b), effectively treating the court's jurisdiction as available.

p. 4

Legal principles established

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  • Where the position of land on the ground differs from the Registry Index Map, the map may be rectified to reflect the ground position
  • An access road may not be opened through private land without following the correct procedure and giving notice to affected owners

Court orders

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  1. 1.Permanent injunction restraining the 1st and 3rd Defendants from interfering with the Plaintiffs' peaceful enjoyment of land parcel Kisumu/Kasule/4240 (prayer (a) of the plaint)
  2. 2.Order directing the District Land Registrar, Kisumu in conjunction with the District Surveyor, Kisumu to move to the site to establish the proper boundaries, beacons, extent, location and size of the public access road (prayer (b) of the plaint)
  3. 3.Each party to bear own costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel Kisumu/Kasule/4240 and access road dispute

Relief refused

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Judgment against the 2nd Defendant

The 2nd Defendant died and the case against him abated

p. 3

Any relief against the 3rd Plaintiff

No cause of action disclosed against him; he was joined only as the owner of the original parcel

p. 5

Costs

Each party to bear own costs of the suit as the Plaintiffs and the 1st Defendant are neighbours

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The court finds that the 1st and 2nd Plaintifis have proved their case on a balance of probabilities and enters judgement in their favour and against the 1st and 3rd Defendants in terms of prayers (a) and (b) of the plaint.
p. 6Disposition - judgment in terms of prayers (a) and (b)
Regarding costs of the suit, each party to bear own costs of the suit as the Plaintifis and the 1st Defendant are neighbours.
p. 6Costs order
I find that the Plaintifis, 1st and 2nd have demonstrated grounds for grant of an order of permanent injunction as prayed. Their property is at risk of being wasted by the 3rd Defendant.
p. 6Permanent injunction
That where the map does not agree with the ground position, it is the map that must be amended to align with the ground.
p. 5Rectification of Registry Index Map
There is no cause of action disclosed by the 3rd Plaintifi in the pleadings or evidence.
p. 5No cause of action by the 3rd Plaintiff

Issues in the judgment

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minor

The jurisdictional objection under the Public Road and Road Access Act and the exhaustion doctrine raised by the 1st and 3rd Defendants is never expressly resolved in the Analysis, yet judgment is entered against those Defendants

minor

The judgment does not give the names of the Defendants; the parties are identified only by role

minor

The testimony of DW1 is cross-referenced as 'PW1' in error in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyambati & 2 others v Okere & 4 others (Environment and Land Case 314 of 2015) [2025] KEELC 6662 (KLR)", Case Analysis (2025). Kisumu ELC Case of 2015 (Plaint dated 16th November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6662/eng@2025-10-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.