National Oil Corporation of Kenya Limited v Equator InnEquator Inn Limited t/a Tsavo Inn Hotel (Civil Appeal 161 of 2019) [2024] KECA 1149 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that 20+ years of openly using a path over someone's land creates a permanent right of way that survives even a change of land ownership.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's suit before the ELC was res judicata having regard to Machakos ELC No. 287 of 2011 and Machakos BPRT Reference No. 39 of 2011
- 2.Whether the respondent's claim for an easement by prescription under section 32 of the Limitation of Actions Act was merited
- 3.Whether the grant of the mandatory injunction by the trial court was merited
Key legal issues
#Whether the ELC suit was barred by res judicata
No. The prior Machakos ELC suit concerned termination of a petrol station dealership and the BPRT matter was a landlord/tenant dispute; neither involved easements, and the BPRT lacked jurisdiction over easement claims.
Applying the five conditions under section 7 of the Civil Procedure Act, the Court held that the issues, cause of action and subject matter of the earlier suits differed from the easement claim. The BPRT's jurisdiction is confined to business premises landlord/tenant disputes, so it could not have determined easement questions, defeating the competency condition.
Whether the respondent acquired an easement by prescription under section 32 of the Limitation of Actions Act
Yes. The respondent's uncontroverted evidence of over 43 years of open, peaceful and uninterrupted use of the access road across the appellant's land satisfied section 32(1)(c) and the Re Ellenborough Park characteristics.
The Court reappraised the evidence and found unchallenged proof of 43 years' use of the access road by the respondent and its hotel customers, including the elephant tusks entrance structure. Once 20 years had elapsed before the appellant acquired the land in 2010, the easement was absolute and indefeasible, bound the transferee as an overriding interest under section 28 of the Land Registration Act, and was unaffected by change of ownership.
Whether the trial court properly granted the mandatory injunction
Yes. Having correctly found an absolute easement, the judge fairly and justly restored the 43-year status quo; no misdirection in the exercise of discretion was shown.
Relying on The Despina Pontikos and Mbogo v Shah, the Court reiterated that it interferes with discretionary decisions only on wrong principles or clear wrongness. Here the injunction merely restored the pre-2015 position, consistent with the established easement, so there was no basis for appellate interference.
Legal principles established
#- An easement acquired by prescription under section 32(1)(c) of the Limitation of Actions Act after 20 years of peaceful, open and uninterrupted enjoyment is absolute and indefeasible, survives a change of ownership of the servient land, binds a registered proprietor and transferee as an overriding interest under section 28 of the Land Registration Act without registration, and may be formalised by suit after crystallisation.
- A claimant of a prescriptive easement bears the evidential burden of proving 20 years of open use as of right; these presumptions are rebuttable, and where facts admit two explanations the claimant must establish the one consistent with use as of right.
- Res judicata under section 7 of the Civil Procedure Act requires five co-existent conditions; where prior suits involved different causes of action and tribunals without jurisdiction over the subject matter, the defence fails.
- An appellate court will not interfere with a trial judge's exercise of discretion on a mandatory injunction unless misdirection or clear wrongness resulting in misjustice is shown.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Makueni
- Makueni ELC Case No. 83 of 2017 (formerly ELC Civil Suit No. 944 of 2015, Nairobi)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 31(1)(a) of the Rules of this Court referenced)
Relief refused
#The appellant's prayer that the appeal be allowed and the trial court's judgment be set aside
The Court found no merit in any of the appellant's grounds: the suit was not res judicata, the easement had crystallised under section 32 of the Limitation of Actions Act, and the mandatory injunction was properly granted
Costs
Appeal dismissed with costs to the respondent
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 upshot of our consideration is that we find no merit in this appeal and we hereby dismiss it with costs to the respondent.
Consequently, we afirm that the respondent's right to easement on the appellant's property is absolute and indefeasible and it was only through the suit before the ELC that the respondent could formalize its claim for easement.
Once an easement is validly created, it is annexed to the land so that the benefit of it passes with the dominant tenement and the burden of it passes with the servient tenement to every person into whose occupation these tenements respectively come
The above section recognizes overriding interests as enforceable without being registered in the register and bind a registered proprietor and his/its transferee even if he/it does not know of their existence.
It must however be kept firmly in mind that these evidential presumptions are rebuttable and, where facts are open to two explanations, the burden remains on the claimant to establish the explanation which is consistent with the use being as of right.
Issues in the judgment
#The names of the parties in the prior suits are inconsistently rendered as 'Ranji Desai' and 'Rajni/Rajni Desai' within the same judgment
The judgment contains internal typographical inversions of the parcel numbers (L.R. No. 11794/2 'formally LR No. 11487/2') and an apparent misnumbering of the BPRT reference as 'Reference No. 239 of 2011' in one passage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Oil Corporation of Kenya Limited v Equator InnEquator Inn Limited t/a Tsavo Inn Hotel (Civil Appeal 161 of 2019) [2024] KECA 1149 (KLR)", Case Analysis (2024). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1149/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.