Nyambati & 2 others v Okere & 4 others (Environment and Land Case 314 of 2015) [2025] KEELC 6662 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether or not the Plaintiffs have proved their claim on a balance of probabilities
- 2.whether or not the plaintiffs are entitled to the relief sought
- 3.costs
Key legal issues
#Whether the plaintiffs proved trespass/in threatened interference with their land on a balance of probabilities
Yes; the 1st and 2nd Plaintiffs proved their claim against the 1st and 3rd Defendants, entitling them to a permanent injunction
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.
Whether an order should issue compelling the Land Registrar and Surveyor to establish the position of the access road on the ground
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
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.
Whether the Public Roads and Road Access Act ousts the court's jurisdiction over the access road dispute under the exhaustion doctrine
The objection did not prevail; the court entertained the claim and granted relief including the resurvey order
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.
Legal principles established
#- 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
#- 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.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.Each party to bear own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Judgment against the 2nd Defendant
The 2nd Defendant died and the case against him abated
Any relief against the 3rd Plaintiff
No cause of action disclosed against him; he was joined only as the owner of the original parcel
Costs
Each party to bear own costs of the suit as the Plaintiffs and the 1st Defendant are neighbours
Quotable passages
#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.
Regarding costs of the suit, each party to bear own costs of the suit as the Plaintifis and the 1st Defendant are neighbours.
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.
That where the map does not agree with the ground position, it is the map that must be amended to align with the ground.
There is no cause of action disclosed by the 3rd Plaintifi in the pleadings or evidence.
Issues in the judgment
#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
The judgment does not give the names of the Defendants; the parties are identified only by role
The testimony of DW1 is cross-referenced as 'PW1' in error in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.