Former Interior Cabinet Secretary Joseph Nkaissery has won a protracted court battle over an access road at his Karen home.
The Court of Appeal dismissed a case filed by Fredrick Wamalwa and Mary Rabare seeking to force Nairobi County and Nkaiserry to allow them to use part of the estate’s property as an access road.
Justices Asike Makhandia, Jamila Mohammed and Hellen Omondi stated they could not force the county to do its work as it was within its powers to either reject subdivision and provision of an access road.
The court ruled that Wamalwa had jumped the gun by going to court without first exhausting the internal dispute resolution mechanisms.
“The first respondent had the discretion to grant or not to grant permission to the sub-division scheme or to erect a road barrier.
The learned judge did not, therefore, err in holding that the court would exceed its jurisdiction if it directed the 1st respondent on how to discharge its mandate,” the judges ruled.
Others who had been sued are politician Kiema Kilonzo, Dr Robin Mogere, Wellington Amodho, Erastus Mwongela, Joseph Ngok, and John Lokorio, a long-serving personal secretary of the late President Daniel Moi.
The county told the court that when it discovered negligence when the property was being subdivided and a further provision of an access road, it allowed Nkaissery, who died in 2017, and other residents to erect a barrier at the entrance of the road.
On the other hand, the six told the court that Wamalwa had no interest in the property as he had already sold it to them.
They argued a further sub-division of the property resulted in an access road that was to be used as a cul de sac (a dead-end street).
They asserted that their properties are a gated community and therefore there was no provision for a public access road.
The court heard that they had lodged their complaint before the county and Wamalwa was ordered to change his plans.
In the case, the court heard that Wamalwa on February 9, 2008, applied for a sub-division permission of his parcel of land and was approved by the Town Planning Committee of the now defunct Nairobi City Council in a meeting held on June 19, 2008.
Wamalwa obtained authority to subdivide the property into five parcels of land.
Two of the plots were sold to the late Dr Hezron Nyangito, whose estate was represented in the case by his wife Rabare.
The council communicated to Wamalwa through its letter that one of the conditions of the approval was that four plots be provided access from the existing 12-metre road.
In the meantime, Nkaissery and the other residents formed a self-help group known as the Judge Borehole Water Project Self-Help Group to regulate the management and maintenance of the common areas of their respective plots.
Upon discovering that Wamalwa had been allowed to use one property as an access road, they protested to the council, which then ordered him to amend the subdivision scheme to use the already approved 9-meter access neck.