1. This suit was commenced through the plaint dated 30th September 2022 in which the Plaintiff sues as the widow and administrator of the estate of the late Felix Nathan Kinyili, the registered proprietor of land parcel no. Nzambani/Kyanika/2935 measuring 1.25 Ha. The 6th defendant is the registered proprietor of land parcel Nzambani/Kyanika/2934, registered in the name of Elijah Muatine Kinyili before he passed away, while the 7th defendant is the registered proprietor of land parcel Nzambani/Kyanika/2936.
2. The plaintiff avers that the aforestated parcels of land were a single parcel of land known as Nzambani/Kyanika/308, registered in the name of Kinyili (deceased). Kinyili was the father-in-law to the plaintiff, the 6th and 7th defendants. She stated that a land case had been filed as an appeal to the Minister No.1697 of 1986 Kyanika Adjudication Section was settled by consent of the parties, on 24th January 2006 and a decision was reached that the land parcel No.308 be divided into 3 parcels in the names of Felix Nathan Kinyili to own land parcel Nzambani/Kyanika/2935, Florence Mwikali Kinyili to own land parcel Nzambani/Kyanika/2936 and Elijah Muatine Kinyili to own land parcel Nzambani/Kyanika/2934.
3. The above decision was implemented by the subdivision of the land, and each party was to get their parcel of land as already fenced out and as per the map attached to the Minister’s decision and there was no creation of a road since each parcel was touching and bordering a road shown on the map.
4. Sometime in 2021, the Plaintiff was informed by the 6th, 7th and 8th defendants at a family meeting that a road passed through her parcel of land Nzambani/Kyanika/2935. According to her, the road had not existed before, it was not part of the consent nor the map, and she did not know of it.
5. The said road passed through the plaintiff's house and her mother-in-law's grave, and operationalising the road meant the demolition of her home and the exhumation of her mother-in-law's body. The Plaintiff claims that her house was constructed under the supervision and advice of the 8th defendant in collaboration with the 6th defendant.
6. Upon following up, it came to the Plaintiff’s attention that the 4th and 5th defendants were involved in the alleged amendments in the absence of the plaintiff and her deceased husband and in the absence of all the other landowners. They went ahead to sign the mutation form, yet the owners of the three affected parcels were alive and unaware of this.
7. These actions of the 4th and 5th defendants are said to be supported by the 6th, 7th and 8th defendants since they were the beneficiaries of the road and in collusion and fraud with all the defendants to deprive the plaintiff of the complete use of her parcel of land and use it as a road without her knowledge, consent and input.
8. The Plaintiff gave particulars of fraud and collusion as causing amendment of the map and signing mutation forms for land parcel Nzambani/Kyanika/2935 without the consent of the plaintiff nor her late husband, implementing a road for the benefit of the 6th defendant who subdivided her land, which was not part of the consent in Kyanika Adjudication section’s Minister’s Appeal 1697 of 1986 and creating a new map with an access road only affecting and taking away the Plaintiff’s land parcel Nzambani/Kyanika/2935.
9. Plaintiff avers that the 6th and 8th defendants have threatened to demolish her house and remove the permanent structures and have involved the area chief to oversee and carry out the exercise, which actions are adverse to the Plaintiff and her peaceful and quiet existence and enjoyment of her properties.
10. The 9th defendant has by letter dated 5th September 2022, threatened to evict, demolish and destroy the plaintiff’s properties as found on Nzambani/Kyanika/2935.
11. The Plaintiff prays for judgment against the defendants jointly and severally as follows:
a) That the plaintiff is the sole beneficial and registered owner of the parcel of land in Nzambani/Kyanika/2935.
b) Possession of the whole portion of Parcel of Land No. Nzambani/Kyanika/2935 belonging to the plaintiff as per the decision of 24/1/2006 in Kyanika Adjudication Appeal No.1697 of 1986 without any access road as created in the map of Kyanika registration section diagram No.12 25th edition Kitui District Nzambani location as established in the map on or about 30/01/2009.
c) Removal of the access road and amendment of the map and lands registry documents by the 1st to 5th defendants, which access road was created on or about 30/01/2009 through Minister’s Appeal Case No.1697 of 1987 and restore the lands on map and documents without the created access road.
d) A perpetual order restraining the defendants and/or their authorized officers from creating any access road, implementing the opening of an access road in the map found in parcel Nzambani/Kyanika/2935 or interfering with the boundaries of a parcel of land no.Nzambani/Kyanika/2935 by way of creating access road for the benefit of Land Parcel Numbers Nzambani/Kyanika/2936, Nzambani/Kyanika/3207, Nzambani/Kyanika/3206, Nzambani/Kyanika/3205, Nzambani/Kyanika/4151, Nzambani/Kyanika/4149, Nzambani/Kyanika/4148 or any land numbers resultant of these stated land numbers.
e) An order that parcel of land no. Nzambani/Kyanika/2936 and Nzambani/Kyanika/2934 and their resultant parcels of land from their subdivision should create an access road from their parcels of land but not from Nzambani/Kyanika/2935 as earlier demarcated before the amendment of the map and creation of the indicated access road.
f) Costs of the suit.
g) Interest in c and d above.
The 1st -5th and 9th Defendants Statement of Defence
12. The 1st, 2nd, 3rd, 4th, 5th and 9th defendants represented by State Counsel filed their defence against the Plaintiff, denying the allegations therein and stating that if any access road was created on the suit property, it was done procedurally and within the confines of the law.
The 6th to 8th Defendants’ Statement of Defence and Counterclaim
13. The 6th, 7th and 8th defendants filed their defence, refuting the Plaintiff’s claim that there was no creation of any access road during the implementation of the Minister’s decision in Appeal No.1697 of 1986 and the subdivision of land parcel Nzambani/Kyanika/308 is refuted and disclaimed as untrue.
14. It was further stated that the implementation of the Minister’s decision was done on or before December 2008 and amendments on the maps were effected on or before 30th January 2009 as per Kyanika Registration Section Diagram Sheet No.12, as per the 9th edition publication and as per the aforesaid public records, an access road was provided to serve Land Parcels Nzambani/Kyanika/2934, 2935 and 2936 respectively. None of the parties raised an objection or complaint at all on the widening of the access road.
15. It is also stated that the matter was revisited on or about 18th December 2020 when all affected persons in the opening up of the road signed an agreement. This exercise was occasioned by the blockage of the said access road by the plaintiff’s agents or relatives in such a manner that it was impassable and inaccessible by wide loads. It was therefore done out of public necessity.
16. The office of the 9th defendant was the first recipient of the said reports. They escalated the issue to the necessary ministries or offices and issued a notice to the Plaintiff demanding the unblocking of the public access road. They stated that this case is an attempt to frustrate the 6th, 7th and 8th defendants, among other members of the public who use the said road.
17. The defendants also filed a counterclaim, claiming that by the acts or commission of the plaintiff, the public access road in dispute has been blocked or narrowed by encroachments to such an extent that it is impassable and inaccessible by wide loads, including being unable to drive their motor vehicles up to their homesteads among other inconveniences.
18. As such, the 6th -8th defendants state that they must be allowed to enforce and implement the existing access road as per the Kyanika registration section diagram or sheet no.12 of the 8th Edition publication dated 30th January 2009 as per official adjudication records and maps.
19. As such, the 6th- 8th defendants aver that the acts of the Plaintiff amount to denying the 6th- 8th defendants, among other members of the public, the right of way or accessibility to their homes and are therefore unlawful, unfair and unjust. They pray for the following orders:
a) That the plaintiff’s suit be dismissed with costs.
b) That the 1st, 2nd, 3rd, 4th and 5th defendants be allowed to implement and put in operation or use the existing public access road serving parcels Nxambani/Kyanika/2935, 2936,4148, 4149, 4150, 3205, 3206 and 3207 among others, as per Kyanika registration section diagram/maps or sheet 12, which delimits and delineate the public access road.
The Hearing of the Suit
20. PW 1, Jennifer Nathan Kinyili, the plaintiff herein stated that she has been on her land since 1984 when she got married, and some boundaries have been there. She adopted her witness statement dated 24th January 2023 and her bundle of documents dated 20th January 2023, and a further list of documents dated 6th February 2023 as her evidence in chief.
21. In her witness statement, she reiterated that she is the wife and legal administrator of the estate of the late Felix Nathan Kinyili, who is the registered owner of land parcel no. Nzambani/Kyanika/2935 measuring 1.25 Ha, which resulted from the sub-division of Land Parcel No. Nzambani/Kyanika/308 was previously registered in her father-in-law's name.
22. She later was called to a family meeting since she was away, and she was informed that an access road would pass through her property land parcel no. Nzambani/Kyanika/2935 was to be created. The creation of the road would necessitate demolishing her house and exhuming and relocating her mother-in-law’s grave. The Plaintiff states that her home was constructed on the supervision and advice of the 8th defendant in collaboration with his mother, the 6th defendant.
23. She did not consent to the mutation and construction of the aforesaid access road and states that the 4th and 5th defendants were involved in the alleged amendments in her absence and that of her late husband. The 6th -8th defendants have threatened to demolish her house and remove the permanent structures on the suit parcel, involving the area chief in the exercise and she prays for the orders claimed for in the Plaint.
24. During cross-examination, the Plaintiff clarified that she did not personally participate in the adjudication proceedings but her husband was present.
25. The Plaintiff was referred to exhibit 4 of the Minister's appeal proceedings, in which she confirmed that the evidence of her husband was that he agreed to give land to her father-in-law's unmarried daughter Florence Mukai Kinyili.
26. When she was referred to exhibit 7, she noted that there is an access road on the map but she did not know when the map was done and stated that the said road is not on the ground. She stated that her house was built in the year 1987. She also confirmed that the suit land is still in her husband’s name.
27. PW 2 Kithiki Mwaki adopted his witness statement dated 24th January 2023 as his evidence in chief. He stated that the Plaintiff is his older sister and that in 2004, she had asked him to construct a septic tank in her house that is on the suit property, which he did.
28. PW 2 stated that he had not heard of any claims or complaints that a road was supposed to cut through the plaintiff’s land, where she has been since the year 1984 when she got married to her husband and has peacefully resided until he heard of the plans to build a road through her property in the year 2020.
29. PW 2 stated that all the parcels of land touch the main road. Upon cross-examination, he stated that he did not know of any adjudication case between the parties or how the land parcels came to be registered in their names.
30. PW 3 William Mumo Kimonyi stated that the Plaintiff is her aunt, who has lived on the suit land for a very long time, since the 1980s. On 18/12/2020, the Plaintiff asked him to attend a meeting where the issue of a road cutting through the plaintiff’s house, septic tank and mother-in-law's grave were discussed.
31. He stated that he had not heard that a road was supposed to cut through the plaintiff’s land. He confirmed that the plaintiff has peacefully resided on the suit land for more than 30 years. He acknowledged that he could see the road on the map and that an access road has to be allocated in case of a subdivision.
32. DW 1 Benjamin Vaati Muatine, the 8th defendant herein, relied on the bundle of documents dated 29th January 2023 and witness statement dated 27th January 2023, which was adopted as the 6th-8th defendants’ evidence in chief. He also relied on the defence and counterclaim. He testified that he is related to the Plaintiff and the 6th and 7th defendants and that the substratum of the dispute has its origin in the dispute over land parcel Nzambani/Kyanika/308 heard vide Minister’s Appeal No.1697 of 1986.
33. The aforesaid dispute was settled by consensus of the parties, where they decided to subdivide the land parcel Nzambani/Kyanika/308 into three portions, a fact that was conceded by the plaintiff and that there was to be an access road resultant of the subdivision, as per the mutation form. Therefore, the 8th defendant stated that the access road was created at the point of subdivision and not later as the plaintiff claims.
34. The issue was revisited through a notice dated 14th October 2020, issued by the Sub-County Surveyor to all affected persons and another letter by the chief (the 9th defendant), dated 7th December 2020 was addressed to the Land Registrar, reporting the blockage of the access road following a complaint. The surveyor subsequently did the opening of the access road on 18/12/2020 as scheduled, and all affected parties, including the plaintiff, signed an agreement on some key issues.
35. On 23/9/2014, another issue cropped up occasioning the sub-division of Land Parcel Nzambani/Kyanika/2934, the suit property, among others, as per the discussion and deliberations of the members of the family. This subdivision did not interfere with or change the location of the access road or the boundaries as set out in 2008, except for the new titles.
36. The Plaintiff has blocked the access road that serves the neighbouring parcels, thus, a report was made to the area chief who is the 9th defendant. He stated that in order to make the access road passable and motorable, it would require the removal of trees that encroach into the width of the access road, which trees were planted by the plaintiff. It is his view that it is unfair for the plaintiff to object to the exercise or the move to put into use the access road as it is a necessary easement providing connectivity to the occupants of the adjoining parcels of land and other neighbours without occasioning any injury to anyone.
37. The 8th defendant denied being involved in the building of the plaintiff’s house in question. He noted that there were agreements that the trees should go but that the house and the grave could be spared.
38. During cross-examination, DW 1 noted that the mutation that gave rise to the access road was filled on 17th December 2008. He also noted that as per the document in defence exhibit 4 dated 18/12/2024, all parties had signed an agreement to implement the access road, including the plaintiff who has not disproved the validity of her signature thereon.
39. DW 2 Peter Kamau Nduati, the Land Adjudication Officer Kitui, gave his evidence, adopting his witness statement dated 9th December 2024 as well as their bundle of documents as evidence.
40. He stated that according to their records, the Plaintiff was a respondent in Minister’s Appeal Case No.1697 of 1986 before the Deputy County Commissioner for Kitui, where it was consented to withdraw the appeal as per the agreement between the two parties.
41. The terms of the aforestated agreement were that they would share land parcel No. Nzambani/Kyanika/308 by subdividing it into three parcels. The resultant subdivisions were Nzambani/Kyanika/2934, measuring approximately 0.45Ha in favour of the 6th defendant, Elijah Mautine Kinyili, Nzambani/Kyanika/2935, measuring approximately 1.285Ha in favour of the Plaintiff, Felix Nathan and Nzambani/Kyanika/2936 in favour of the 7th Defendant, Florence Mukai Kinyili.
42. The 5th defendant instructed DW 2's office to facilitate the implementation of the Minister's orders as per a letter dated 25th August 2008. The Chief Land Registrar directed the 2nd defendant to register the three parcels of land in question and produce title deeds for the Plaintiff, the 6th and 7th defendants through a letter dated 4th December 2012.
43. DW 2 stated that the Plaintiff cannot impugn the very administrative orders that she is a beneficiary of and accuse their office of engaging in fraud and collusion.
44. On cross-examination, DW 2 stated that there was a provision for a road in the implementation of the decision from the Appeal to the Minister as per the instructions that he received. He denied preparing the mutation form as that is the role of the surveyor; they only sign it on behalf of the office of the 5th defendant. It was also signed by a representative of each of the parties.
45. DW 3 Simon Ngalama, Government Surveyor at the Ministry of Lands in charge of Kitui Central, gave his evidence on behalf of the office of the 1st Defendant. He stated that he has had a look at the documents filed by all the parties emanating from the implementation of the decision in the Minister’s Appeal 1697 of 1986, in which the decision was to carry out a subdivision of land parcel No. Nzambani/Kyanika/308.
46. During the subdivision, DW 3 stated that he was to prepare 3 documents, that is; a mutation form, a map in two copies and a forwarding letter for the 2 documents. He stated that the mutation form is signed by the officer in charge of the Land Adjudication (DLASO) office, which is an affirmation that the outcome of the appeal as captioned is implemented in the mutation form, then it is sent back to the Survey Office for the final map amendment and new numbers are issued by the District Surveyor. Once the District Surveyor sends out 2 copies of the Mutation Form and 2 copies of the amended map to the officer in charge of Land and Settlement, the Surveyor’s role ends here. The Sketch map provided by the Land Adjudication Office which was Exhibit 5 guides the Surveyor on how to carry out the subdivision.
47. During cross-examination, DW 3 stated that the Sketch Map as presented shows that each parcel has an access road, but this is usually subject to a final survey on the ground. Therefore since the final survey had not been done, he stated that one cannot say that their boundaries have been infringed and that their land has been taken by the road. He was not aware that the land used as an access road came from the Plaintiff’s land and he was not aware of any arrangement to compensate the Plaintiff.
48. DW 3 added that when subdivisions are being carried out, they do consider houses and graves and find alternatives if a road passes through them. He, therefore opined that an access road passing through a house, grave or septic tank would not be done by a technical expert and that this was probably created after a survey.
49. It was acknowledged by DW 3 that the sketch map that accompanied the order from the Minister’s appeal case did not show the sizes of the portions of land. He stated that from the plan, one can say that the access road was created not from the subdivisions but from the mother title Land Parcel 308, which was still intact at the time.
50. Upon re-examination, DW 3 stated that it is common practice that when any subdivision is done, one has to provide an access road to the resultant parcels as a requirement. He noted that there was an amendment to the map that was made in 2009. To his knowledge, after the subdivision was done no one raised a complaint after the subdivision.
51. To conclude his expert evidence, DW 3 stated that it is his professional opinion that it would be impossible for a professional to make a road where there are permanent buildings and graves, as these things are easily identifiable on the ground.
52. DW 4 Joseph Njagi, the Land Registrar, Kitui, gave his evidence in the matter. He acknowledged that Exhibit 2, which is the letter addressed to the District Land Registrar that is dated 4th December 2012, in regard to Appeal to the Minister Case no.1697 of 1986, contains the orders to be implemented on the subdivision of Land Parcel 308 Kyanika Adjudication Section into 3 parcels.
53. According to the documents from their office, they complied with the said letter. He stated that the matter before the Court does not touch on registration.
54. During cross-examination, DW 4 noted that according to the mutation form, there was a provision for a road of 0.145 Ha and that when the sizes of all the parcels of land are added up, it comes to a total of 2.55 Ha. From their records, land parcel 308 was originally 2.4 ha. He concluded by stating that they usually follow the recommendation of the District Surveyor, that his office’s role is to implement what has already been approved by the District Surveyor and that there was no complaint to him as to the subdivision or legitimacy of the documents in the file.
55. DW 5 Bernard Mwema Kilonzi, the area chief of Kyanika Location, named as the 9th defendant herein, also gave his evidence in Court. He stated that the 8th defendant herein came to his office on 7th December 2020 and informed him that there was a road between his land and that of his uncle, Felix Nathan Kinyili(Deceased), which had been blocked. He established that the said road had been marked, and since he is not an expert in the matter, he referred them to the Land Registrar through a letter done on the same day, produced as Defence Exhibit 3.
56. DW 5 received a summons from the Survey office with the date the survey exercise was to be carried out, which was on 18/12/2020, in which he was to attend and provide security, which instructions he complied with.
57. He was referred to a letter that he wrote dated 5th September 2022, which is Defence Exhibit 6 on the 6th -8th defendant's bundle, which was addressed to the Plaintiff herein. He stated that he wrote the letter to communicate the intention of the defendants to use the road and to request for the opening of the road, but this was not complied with.
58. DW 5 stated that when the surveyor went to mark and open the access road on 18/12/2020, the parties involved signed an agreement on what they should do, which involved sparing the grave, not touching the house and not destroying the crops that were on the shamba, and not demolishing the septic tank therein and if possible, that they would narrow the access road. All the parties signed this agreement, including the Plaintiff.
59. He also confirmed that before the subdivision, there was a footpath that was used to access family and relatives. He stated that to the best of his knowledge, this agreement was complied with.
60. During cross-examination, DW 5 stated that he was not aware of whether the said road existed before 2017. He also did not know from what parcel the land for the road was excised, but he stated that before 2008, the Plaintiff’s house was not in the way, and it consisted of only 2 rooms. After 2008, it was extended to add more rooms towards the access road.
61. Regarding the crops on the access road that were referred to in the agreement, DW 5 stated that he did not know who planted them, but they agreed that they were not to be touched until they were harvested.
62. On re-examination, DW 5 stated that he was not the area chief when the access road in dispute was created in the year 2008.
63. This marked the close of the Defence case and parties were directed by the Court to file their written submissions.
The Plaintiff’s Submissions
64. The Plaintiff submitted that her proprietary rights under the Constitution of Kenya and other relevant statutes had been grossly violated by the Defendant’s actions, of unlawfully amending the cadastral map and creating a road through her property, with no share of the other two beneficiaries of the subdivision’s land going to the road. This was done without her and her husband’s knowledge, consent, or participation. It is submitted that these actions of the defendants were done clandestinely, in collusion and in bad faith, especially being that it was done 16 years after implementation of the decision in the Minister’s Appeal.
65. It was submitted that the Defendant proceeded in the year 2014 to further subdivide land parcel 2936 and create small plots and sold some of them, now demanding access to the created parcels but from the plaintiff's land.
66. Counsel for the Plaintiff cited and relied on the provisions of Articles 40 and 47 of the Constitution of Kenya, 2010, Sections 19, 24, 25 and 26 of the Land Registration Act, 2012 and the Physical and Land Use Planning Act 2019.
67. For case law, Counsel relied on the following authorities:
Kyalulu Mutiso v. Mwala Land Adjudication Officer(2004)eKLR
Kenya Power and Lighting Co.Ltd v. Kingongo(2008)eKLR
Satrose Ayuma & 11 others v. Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 others(2015)eKLR
68. The Plaintiff accused the defendants of colluding to create an extra road where there was none since all parcels had access to a major road on all sides, of forgery of the mutation form by the 4th defendant, violation of due process, in not involving the Plaintiff’s deceased husband while he was alive, which is a contravention of Article 47 of the Constitution, resulting in the creation of an unnecessary road and prayed for the orders sought in the plaint.
The 6th-8th Defendants’ Submissions
69. Counsel for the 6th -8th Defendants submitted that the parties involved, through the Land Adjudication and Settlement Office, came up with 2 sketches, one indicating the subject parcel of land to be subdivided and another showing the subdivisions and the respective beneficiaries of each portion. This was signed by the Plaintiff’s husband, Felix Nathan Kinyili(deceased), instead of all the three parties. It was submitted that an access road was created as per the mutation forms produced.
70. It was submitted that it was a recommendation that after Nzambani/Kyanika/2934 was further subdivided into other smaller parcels, it was apparent that the existing access road would need to be opened up for use and it was so agreed. The obstructions to the road were occasioned by the plaintiff.
71. It was noted that the right to appeal against the decision of the surveyor was given, but no appeal was lodged.
72. It was submitted that the initial sketch after the Minister’s Appeal decision did not have the sizes or measurements and that one of the conditions of subdivision would be an access road to be provided as part of the implementation of the said decision. They relied on the authority in the case of Ngetich & Another v. District Land Registrar& 3 others, submitting that the access road was a necessary component in the implementation of the minister’s order.
73. Counsel submitted that the Plaintiff cannot demonstrate any illegality, unlawfulness or unfairness done in the process of the implementation of the Minister's order, then this particular claim must fail. Even though there was a family agreement that some of the obstructions be spared, the Plaintiff became adamant, when this is the access road that serves Nzambani/Kyanika/4149,4150, 4151, 3205 and 3206.
74. The cases of Fairview Estate Ltd. vs. Ann Wangari Kirima & 2 others (2016)eKLR and Jaj Superpower Cash and Carry Ltd v. Nairobi City Council & 2 others Court of Appeal at Nairobi Civil Appeal No.111 of 2002 Nairobi(unreported) were relied on, while they prayed that the obstructions must be removed, to give way to the access road and that the Plaintiff pay the costs of the suit.
75. State Counsel for the 1st -5th and 9th Defendants did not file their written submissions.
Analysis and Determination
76. The plaintiff claims that her proprietary rights have been violated by the Defendants' actions of unlawfully amending the cadastral map and creating a road of access through her property NZAMBANI/KYANIKA/2935 without her consent, knowledge or participation and without her husband’s signature.
77. She states that by the consent entered into in Appeal to the Minister case No. 1697 of 1986, the parties agreed that the initial land parcel 308 subject matter of the appeal was to be subdivided into three as per the sketch map drawn and attached to the decision in the appeal. The parties intentionally did not create any road because each parcel had access to the public road after the subdivision.
78. She seeks an order declaring her to be the sole beneficial and registered owner of the parcel of land Nzambani/Kyanika/2935. She also seeks an order granting her possession of the whole portion of a parcel of land No. Nzambani/Kyanika/2935 belonging to her as per the decision of 24/1/2006 in Kyanika Adjudication Appeal No.1697 of 1986 without any access road as created in the map of Kyanika registration section diagram No.12 25th edition Kitui District Nzambani location as established in the map on or about 30/01/2009.
79. The Plaintiff further seeks removal of the access road and amendment of the map and lands registry documents by the 1st to 5th defendants, which access road was created on or about 30/01/2009 through Minister’s Appeal Case No.1697 of 1987 and an order restoring the lands on map and documents without the created access road.
80. The Plaintiff prays for a perpetual order restraining the defendants from creating any access road, implementing the opening of an access road in the map found in parcel Nzambani/Kyanika/2935 or interfering with the boundaries of a parcel of land no.Nzambani/Kyanika/2935 by way of creating an access road for the benefit of Land Parcel Numbers Nzambani/Kyanika/2936, 3207, 3206, 3205, 4151, 4149 and 4148 or any land numbers resultant of these stated land numbers.
81. An order that parcel of land no. Nzambani/Kyanika/2936 and Nzambani/Kyanika/2934 and their resultant parcels of land from their subdivision should create an access road from their own parcels of land but not from Nzambani/Kyanika/2935 as earlier demarcated before the amendment of the map and creation of the indicated access road.
82. The 1st to 5th Defendants in their defence, deny the claim by the Plaintiff, stating that they implemented the decision in the appeal in accordance with the orders given, instructions issued and the relevant law.
83. The 6th to 8th Defendants filed a defence and counterclaim denying the Plaintiff's claim that there was no road of access created during the implementation of the decision in the appeal to the Minister claiming that the access road created in the initial parcel of land was created on or before December 2008 and amendments to the map were made on 30th January 2009 as per the public records available.
84. The Defendants further claim that the parties involved in this dispute negotiated a settlement and an agreement was arrived at and signed by all parties including the Plaintiff herein on 18th December 2020 when the 1st and 2nd Defendants opened up the road. The said agreement provided that the Plaintiff’s house, the grave of Damaris Kinyili and the septic tank present on the road were to be removed at a later date. However, the Defendants claim that the Plaintiff and her family continued blocking and denying the 6th, 7th and 8th Defendants and other members of the public from using and accessing the said road. They sought an order that they be allowed to implement and put in operation or use the existing public access road serving parcels Nzambani/Kyanika2935, 2936, 4148, 4149, 4150, 3205,3206 and 3207.
85. The court has considered the pleadings filed, the evidence adduced at the trial, the documents produced and submissions by Counsel for the parties. Counsels have set out what in their views are the issues for determination. It is considered that the following issues arise for determination.
A) Whether the disputed access road was created rightfully, following due process and in accordance with the agreement arrived at in Appeal to the Minister No.1697 of 1986.
B) Whether the access road should be opened up for use by the 6th to 8th Defendants and other members of the public.
C) Whether the parties to this suit are entitled to the orders sought.
D) Who will bear the costs of this suit?
A) Whether the disputed access road was created rightfully, following due process and in accordance with the agreement arrived at in Appeal to the Minister No.1697 of 1986.
86. The Court considers the decision in the appeal to Minister No. 1697 of 1986 as being the genesis and at the heart of the present dispute. The said appeal was heard and determined by consent of the parties on 24th January 2006. The parties to the appeal are recorded as Elijah Mwatine Kinyili (deceased) Appellant, represented by son Kioko Mwatine versus Jeremiah Kinyili Mwailu-(deceased) Respondent, represented by Felix Natahan Kinyili (son).
87. Kioko Mwatine informed the District Commissioner, Kitui, who was hearing the matter, that after the litigants in the suit died, they sat as a family and agreed to resolve the dispute. The land was subdivided with clear boundaries. He stated that everyone was satisfied, and all they needed was surveyors to officially endorse the boundaries already set. Felix Nathan Kinyili also informed the District Commissioner that they had settled the dispute amicably, save to include an unmarried daughter of the deceased, Florence. Present at the hearing was one Damaris, who also agreed to the amicable settlement.
88. The District Commissioner recorded the conclusion of the matter as follows;
“The parties agreed to withdraw the case and request the Minister to adopt the family’s agreement on the boundaries already put by them as per the attached copy of the map. I hereby consent to the agreement”.
89. It is this decision that the 1st to 5th Respondents were mandated to implement in their different capacities.
90. The Plaintiff filed the sketch map that she claims is the one that was referred to in the conclusion above. She stated that the implementation of the subdivision was clear that parties were to get their parcels of land as already fenced and there was no creation of a road since each parcel touched a main road as shown on the sketch map.
91. The 6th, 7th and 8th Defendants, on their part, denied the averment that the implementation of the decision of the Minister in appeal No. 1697 of 1986 did not involve the creation of a road of access. They contend that the said implementation was done on or before December 2008, and an amendment to the map was effected on or before 20th January 2009. This was evidenced by the Kyanika registration section diagram or sheet number 12, and the access road was made to serve land parcels Nzambani/Kyanika/2934, 2935 and 2936. They claim that the implementation of the decision is supported by official records and none of the parties involved complained.
92. The Court notes that the 6th-8th Defendants did not deny the existence of the sketch map showing the location of the boundaries that were stated to have existed even before the consent was recorded. DW1, the 8th Defendant indeed confirmed the map exhibited by the Plaintiff on the shape of the original parcel of land but stated that the said map was only a sketch and the products of subdivision of the original title were entitled to an access road as per the mutation forms in order to serve the resultant titles. The Defendants also did not deny the fact that the proposed subdivision of the original land provided every parcel access to a main road. Indeed, upon cross-examination, DW1 Benjamin Vaati Muatine confirmed that from the original map, each of the three parcels of land touches an access public road and that the consent did not talk about an access road.
93. The 4th and 5th Defendants contended in their evidence that the parties to the dispute in the appeal to the Minister consented that the original parcel of land was to be subdivided into three. DW Mr Peter Nduati, the District Land Adjudication and Settlement Officer, Kitui, testified that the land was to be subdivided with land parcel Nzambani/Kyanika/2934 measuring approximately 0.45, parcel 2935 measuring 1.285, and parcel 2936 measuring 0.52. The witness stated that it was the agreement of the parties that triggered the administrative action where his office was instructed to facilitate implementation of the decision and orders of the Minister as per the letter exhibited in court dated 25th August 2008.
94. However, it is noted that the consent recorded by the parties did not contain the measurements that were to be allocated to the respective parcels of land. Further, the letter dated 25th August 2008 stated that land parcel number 308 was to be subdivided as per the family agreement on the boundaries already put by them as per the copy of the map attached to the letter. Indeed, the letter stated that attached to it was a copy of the proceedings and a sketch map. The County Surveyor was directed to implement the order on the ground and R.I.M. By the same letter, the District Land Adjudication Officer was directed to prepare a new adjudication record for the resultant titles.
95. Interestingly, the 5th and 6th Defendant failed to produce in evidence a copy of the map attached to the letter dated 25th August 2008, which was also mentioned in the Minister’s decision. The measurements referred to were shown in the mutation forms exhibited and made after the subdivision of the original land and after the surveyor had curved out the access road.
96. None of the parties exhibited a copy of the sketch map that would contradict the position taken by the Plaintiff that, according to the said map, there was no road of access that was to be created since all parcels were served by a main road.
97. The Plaintiff testified that her husband Felix Kinyili built their house, also the subject of this dispute, in 1987 and the 8th Defendant used to supervise the construction on her husband’s behalf. She exhibited letters written by the 8th Defendant dated 25th June 1987 and 12th June 1987 and two undated letters written by Ben Vaati Mwatine addressed to his uncle. The 6th, 7th and 8th Defendants did not deny that the Plaintiff's house was built in the 1980s. In particular, the 8th Defendant did not deny the fact that he supervised the construction of the house on behalf of his uncle, Felix Kinyili.
98. The Court has considered the decision in the appeal to the Minister case number 1697 of 1986 finalized by consent of the parties. The position of the law on consent orders and/or judgments was espoused in the case of Flora N. Wasike vs. Destino Wamboko [1988] eKLR, where the Court of Appeal stated:
"It is now settled law that a consent judgment or order has a contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out:
99. Further, in the case of Intercountries Importers and Exporters Limited vs. Teleposta Pension Scheme Registered Trustees & 5 others[2019] eKLR, the Court of Appeal pronounced itself as follows:-
“Essentially, the above cited authorities are clear that a consent Order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts or mistake or for a reason which would enable a court set it aside…” (Emphasis added)
100. Based on the foregoing authorities, the Court has considered that the consent entered into in the appeal to the Minister was never set aside, and the same has not been challenged in these proceedings. As per the letters dated 25th August 2008 and 4th December 2012, exhibited by the 4th and 5th Defendants, they, and all the parties to the appeal to the Minister, were obliged to implement the consent.
101. From the evidence on record, the court is satisfied that the decision of the Minister in Appeal Number 1697 of 1986, as arrived at by consent of all the parties, was very clear. The parties were to withdraw the appeal, and the suit land was to be subdivided into three portions in the names of Elijah Muatine Kinyili as represented by Kioko Muatine, Jeremiah Kinyili Mwailu, as represented by Felix Nathan Kinyili and Florence. It was also agreed that there were clear boundaries already put by the family as per a copy of a map attached to the Minister’s decision.
102. The Court agrees with the position taken by the Plaintiff that the boundaries agreed upon were as set out in the sketch map produced in court as Plaintiff’s exhibit number 5. This was also confirmed by DW 3 Simon Nalama, the Surveyor in charge of Kitui Central, who confirmed that the sketch map was attached to the implementation order from the Director of Land Adjudication and Settlement and was supposed to be a guide to the surveyor. The surveyor also confirmed that, normally, during subdivision, an access road is provided to any new parcel that may have no access.
103. As per the said sketch map, there was no provision for the curving out of an access road through either the original land parcel number Nzambani/Kyanika/308 or any of the resultant parcels of land Nzambani/Kyanika/2934, 2935 and 2936. The argument by the defendants that the access road was curved out of land parcel 308 and not from any of the resultant titles does not hold any water since the sketch map by the parties shows the clear boundaries they had set at the time of the consent. The subsequent map shown as part of the mutation form shows that the larger part of the road was curved out of the portion of land allocated to the plaintiff’s husband, in particular, the portion connecting the access road to the main public road. Indeed, this position was confirmed in the Surveyor report produced by the 6th to 8th defendants dated 28th December 2020, in which the surveyor stated that the access road was created to access land parcel Nzambani/Kyanika/2936 and the road was curved out of land parcel Nzambani/Kyanika/2935.
104. Further, the court is satisfied that the sketch map and, indeed the larger map produced by the 6th to 8th Defendants show that all three parcels of land had access to a public road. The presence of the public road serving the three parcels of land was confirmed by PW2 Kithiki Mwathi, and PW3 William Mumo Kimonyi, the 8th Defendant. In the Court's view, if the parties had intended to have a road cutting through the land, nothing would have been easier than for them to include it in the sketch map.
105. The Court’s position is fortified by the evidence of the Plaintiff that her husband constructed the house that is said to be on the disputed access road sometime in 1987 with the assistance and under the supervision of the 8th Defendant. The 8th Defendant made a general denial of being involved in the construction of the Plaintiff’s house but it is noteworthy that he did not deny writing the letters he is said to have written to his uncle concerning the said construction. He did not tell the court when the plaintiff’s house was constructed. The Court is satisfied that the construction of the plaintiff’s house occurred long before the appeal to the Minister was decided.
106. It also came out during the trial that the grave that is stated to be on the disputed road is that of Damaris Kinyili, the Plaintiff’s and 6th Defendant’s mother-in-law, who is also the mother to the 7th defendant and grandmother to the 8th Defendant. The said Damaris was present when the consent was entered into and must have died and been buried subsequently. DW 5 Bernard Mwema Kilonzi confirmed that the person was buried in 2017.
107. The Court is of the view that it would be illogical for the Plaintiff’s husband to have consented to curving out an access road in the years 2008 and 2009 passing through his already existing house. Even though the area chief DW5 stated that the house was extended after 2008, it is noted that the main protagonists in this case did not testify to this fact, and the Plaintiff was not cross-examined on it. The chief also testified that when the encroachment was reported to him, he established that the road was not marked on the ground.
108. Further, if the parties knew of the existence of the access road, it is illogical that in 2017, they allowed their relative to be buried on the said road.
109. In the court's view, the logical conclusion concerning the disputed road was that its existence was not known to the plaintiff and her deceased husband and even to some of the parties to this suit. The person who it appears to the court would have known about the road was the 8th Defendant and possibly the 6th defendant herein. This is taken from the evidence of the 8th Defendant during cross-examination, where he stated that he was the one who processed the three titles while the plaintiff mostly resided in Nairobi or Mombasa and she would email him the documents required. He further stated that Felix (the plaintiff's husband) trusted him and delegated the work of following up the titles to him.
110. It is further noted that the defendants did not seek to use or open up the access road until after the death of the Plaintiff’s husband in 2015. It is also noted from the original map of the area at entry 21 that land parcel Nzambani/Kyanika/2934 was subdivided on 5th October 2020.
111. Concerning the implementation of the decision in the appeal to the Minister and the access road to the three subdivisions of the original land, the court has considered the role given by law to the 1st to 5th defendants concerning land adjudication. The Court presumes that the boundaries for the original parcel of land 308 had been demarcated as provided under Section 15 of the Land Adjudication Act which provides for demarcation of the boundaries of each separate piece of land, whether claimed by an individual or by a group.
112. Sections 16 and 17 of the Land Adjudication Act CAP 284 provide for the duties of the surveyor in the adjudication process.
16. Subject to any general or particular directions given by the adjudication officer, the duties of the survey officer within an adjudication section are—
(a) to carry out such survey work as is required in carrying out the adjudication process; and
(b) to prepare or cause to be prepared a demarcation map of the adjudication section, showing every parcel of land identified by a distinguishing number, except that roads, railways, waterways and lakes need not be identified by a number.
17. General powers of demarcation and survey officers-
In the performance of their respective duties, the demarcation officer and the survey officer may each enter at any reasonable time upon any land within the adjudication area for the purpose of demarcating or surveying any parcel therein and may summon any person who can give information regarding the boundaries of a parcel to point out the boundaries.
113. Section 18 of the Land Adjudication Act wherein carrying out their duties, the surveyors are granted the following powers ;
1. In the performance of his duties, the demarcation officer may—
(a) when the boundary between parcels of land is curved or irregular, or in his opinion is inconvenient or uneconomic for the use of the land, lay out a fresh boundary in its place and adjust the interests of the owners of the land adjoining the boundary either by exchange of land or by such other means as the parties may agree;
(b) demarcate any right of way which is necessary for providing a parcel completely surrounded by other parcels with access to a public road or to water;
(c) make such alignment of parcels adjoining a public road as may be required in the public interest;
(d) with the agreement of the owner or owners group together in one or more parcels, by way of exchange or otherwise, separate areas of land owned by such owner or owners.
(2) Where a piece of land has not been demarcated in the manner and before the date fixed by the demarcation officer under section 5 (2) (d) of this Act, the demarcation officer may demarcate or cause to be demarcated the land and may clear or cause to be cleared any boundary or other line which it may be necessary to clear for the purpose of such demarcation.
(3) Where the demarcation officer demarcates or causes to be demarcated a piece of land or clears or causes to be cleared a boundary or other line under subsection (2) of this section, the cost shall be assessed in the prescribed manner by the adjudication officer, and shall be paid to the Director of Land Adjudication by the person interested in the land.”
114. From the above section 16, the survey officer was expected to have in his custody a demarcation map of the adjudication section that would clearly show the boundaries of the original parcel number 308 with boundaries as demarcated. Further, and as provided under Section 24 of the Land Adjudication Act, the demarcation map and the adjudication record are collectively known as the adjudication register, which register may be subject to objections under Section 26.
115. Appeals to the Minister are provided for under Section 29, which states that;
(1) Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—
(a) delivering to the Minister an appeal in writing specifying the grounds of appeal; and
(b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.
(2) The Minister shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar.
(3) When the appeals have been determined, the Director of Land Adjudication shall—
(a) alter the duplicate adjudication register to conform with the determinations; and
(b) certify on the duplicate adjudication register that it has become final in all respects, and send details of the alterations and a copy of the certificate to the Chief Land Registrar, who shall alter the adjudication register accordingly.
116. From the foregoing Section 29, the decision in the appeals to the Minister No. 1697 of 1986 was to be sent to the Director of Land Adjudication who would alter the duplicate adjudication register to conform to the determination. In the present case, the changes would involve alteration of the demarcation map to show new boundaries as determined by the consent of the parties. It would also require alteration of the adjudication record to reflect the new parcel numbers allocated to the subdivisions of the original parcel and the approximate areas. It would also show alterations in terms of the new owners as determined by the consent of the parties.
117. In the present case, the court has found that the parties to the appeal to the Minister had by consent, provided for access to public roads for the subdivisions of land parcel Nzambani/Kyanika/308. In the court's view, the 1st Defendant was only authorized to alter the demarcation map and create a road cutting through the land only if it was agreed by the parties or if it was necessary for providing any of the resultant subdivisions that were completely surrounded by other parcels with access to a public road or to water; This was not the position in this case.
118. The Court thus finds that the curving out of the access road was not authorized under the consent entered into by the parties; the same was illegal as it was not authorized by the set provisions of the law and was outside the mandate of the 1st Defendant.
119. The 6th to 8th Defendants have raised the argument that all the parties, including the plaintiff herein and other parties who are affected by the access road, went before the 9th Defendant and discussed the matters in dispute herein and reached an amicable settlement and signed an agreement dated 18th December 2020. On the same date, it was noted that the sub-county surveyor had opened the access road of 6 meters. The terms of the said agreement were as hereunder;
a) Any aggrieved can pursue the matter.
b) The house of Nathan Kinyili touched by the access road shall not be demolished for the time being.
c) The septic tank of the same shall not be demolished for the time being,
d) Food planted within the road should be given time to mature for harvesting.
e) The grave of the late Damaris Kinyili should be spared for the time being.
f) The parties involved have agreed to meet at a later date and consult on the possibility of narrowing the access road to give way for the house of Nathan Kinyili.
120. Scrutiny of the above shows that parties aggrieved by the opening of the access road were allowed to pursue the matter elsewhere. In this case, the plaintiff chose to file this suit in court. The signatories to the document dated 20th December 2020 seem not to have resolved much of the dispute since the terms of the document were that all issues were to be dealt with at a later date. It is noted from the court record that efforts to settle this dispute out of court were not fruitful. In the court's view, the document dated 20th December 2020 does not amount to a binding agreement that brought the dispute herein to an end, either fully or partially.
B) Whether the access road should be opened up for use by the 6th to 8th Defendants and other members of the public.
121. Arising from the court’s findings on the first issue discussed above, the court finds that the access road curved out of the suit land was illegal and the same ought not to be opened up for use by the 6th to 8th Defendants and other members of the public.
B) Whether the parties to this suit are entitled to the orders sought.
122. The Court finds that the Plaintiff's suit has merit and the same succeeds while the 6th to 8th Defendant’s counterclaim lacks merit.
123. From the foregoing, the following orders are issued;
A) That the plaintiff, in the capacity of administrator of the estate of Felix Nathan Kinyili, is the registered owner of the parcel of land Nzambani/Kyanika/2935.
B) Possession of the whole portion of Parcel of Land No. Nzambani/Kyanika/2935 belongs to the estate of Felix Nathan Kinyili as per the decision of 24/1/2006 in Kyanika Adjudication Appeal No.1697 of 1986 without any access road as created in the map of Kyanika registration section diagram No.12 25th edition Kitui District Nzambani location as established in the map on or about 30/01/2009.
C) The Court orders the 1st to 5th defendants to remove the access road, amend the map and all land registry documents and restore the original parcels of land without the access road created.
D) A perpetual order is hereby issued restraining the defendants and/or their authorized officers from creating, implementing or opening the access road on the map found on land parcel Nzambani/Kyanika/2935 or interfering with the boundaries of land parcel no.Nzambani/Kyanika/2935 by way of creating, implementing or opening the access road for the benefit of Land Parcel Numbers Nzambani/Kyanika/2936 and all the subdivisions of land parcel Nzambani/Kyanika/2934.
E) The 6th, 7th and 8th, defendant’s counterclaim is hereby dismissed.
F) Costs of the suit and the counterclaim are awarded to the Plaintiff against the Defendants.
Judgement Delivered, dated and signed at Nyeri this 13th day of March 2025.