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Court of AppealDismissedCivil Appeal (Nairobi)

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)

Court of Appeal of Kenya
20 September 2024
4,893 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The respondent, Equator Inn Limited, sued National Oil Corporation of Kenya in the Environment and Land Court, claiming a right of way over the appellant's adjoining parcel to reach the Nairobi-Mombasa highway, which the appellant blocked by constructing a wall in 2015. Mbogo, J. found that the respondent had enjoyed access across the appellant's land for over 43 years, that an easement crystallises under section 32 of the Limitation of Actions Act after 20 years, and granted a declaration of easement together with a mandatory injunction requiring removal of the obstruction. The appellant appealed on seven grounds, principally that the suit was res judicata given prior Machakos ELC and BPRT proceedings, that the easement was wrongly granted despite an alternative access, and that the mandatory injunction lacked special circumstances. The Court of Appeal framed three issues: res judicata, the easement claim, and the mandatory injunction. It held the prior suits involved a petrol station dealership dispute and a landlord/tenant matter outside the BPRT's jurisdiction, so res judicata did not apply. On the evidence, the respondent's unchallenged 43-year open use established an absolute and indefeasible easement under section 32(1)(c), which is an overriding interest under section 28 of the Land Registration Act binding the appellant as transferee regardless of the change of ownership in 2010. The mandatory injunction merely restored the long-standing status quo and disclosed no misdirection of discretion. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 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. 2.Whether the respondent's claim for an easement by prescription under section 32 of the Limitation of Actions Act was merited
  3. 3.Whether the grant of the mandatory injunction by the trial court was merited

Key legal issues

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01

Whether the ELC suit was barred by res judicata

Holding

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.

Reasoning

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.

p. 5
02

Whether the respondent acquired an easement by prescription under section 32 of the Limitation of Actions Act

Holding

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.

Reasoning

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.

p. 7
03

Whether the trial court properly granted the mandatory injunction

Holding

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.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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

majority

Wrote the judgment

majority
majority
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

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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

p. 9

Costs

Appeal dismissed with costs to the respondent

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 upshot of our consideration is that we find no merit in this appeal and we hereby dismiss it with costs to the respondent.
p. 9Final orders - dismissal of appeal with costs
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.
p. 8Crystallisation and formalisation of prescriptive 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
p. 8Easement runs with the land notwithstanding change of ownership (quoting Ruth Wamuchi Kamau vs. Monica Mirae Kamau)
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.
p. 7Overriding interests under section 28 of the Land Registration Act
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.
p. 6Burden of proof for prescriptive easements

Issues in the judgment

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minor

The names of the parties in the prior suits are inconsistently rendered as 'Ranji Desai' and 'Rajni/Rajni Desai' within the same judgment

minor

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

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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, "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.