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Court of AppealDismissedCivil Appeal (as per memorandum of appeal dated 19th December 2019)· [2025] KECA 555 (KLR)

Esther Wanjiku Mwangi & 3 others v Wambui Ngarachu & 2 others

Court of Appeal of Kenya
21 March 2025
4,567 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that long informal use of a neighbour's path doesn't create a legal right of way unless it meets strict legal tests.

What this practically means

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Executive summary

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The appellants, registered owners of four parcels (Loc.8/Kaganda/1654-1657) subdivided from their late father's land Loc.8/Kaganda/77, sued by originating summons in the ELC at Murang'a claiming an easement 58m by 3m over the respondent's parcel Loc.8/Kaganda/73, alleging an arrangement in 1963 between their father and the respondent's late husband, and seeking registration of the easement under sections 32 and 38 of the Limitation of Actions Act. J.G. Kemei, J dismissed the suit on 25th April 2019, holding that an easement is a claim on use of land, not ownership, and that the doctrine of necessity did not apply since no parcel was landlocked. On appeal, a three-judge bench of the Court of Appeal at Nyeri reappraised the evidence. It affirmed that the essential characteristics of an easement are those in Re Ellenborough Park, and held that an easement is creatable only by a conscious act in writing of the parties, noted on the certificate of title; the alleged mutation forms were unregistered and had no force of law. The court found the user was under a mutual permission arrangement, negating prescriptive acquisition under section 32(1)(c); the four Re Ellenborough Park ingredients were absent; none of the parcels was landlocked, so the claim was one of convenience; and following subdivision of the dominant tenement, any easement attached to the original title could not be claimed as of right by the appellants. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appellants acquired an easement by prescription under section 32(1)(c) of the Limitation of Actions Act

Holding

They did not; the user was under a mutual permission arrangement between the original owners, not open use as of right, and the claim failed

Reasoning

Section 32(1)(c) requires twenty years' peaceable, open enjoyment as of right without interruption. The evidence showed the two original owners mutually agreed to create a cross path for their mutual convenience; there was no evidence of an intention to create a right of way. The unregistered mutation forms had no force of law. The appellants themselves first breached the arrangement by fencing off their path. Permission negates prescriptive acquisition.

p. 8
02

Whether the ingredients of an easement under Re Ellenborough Park were established

Holding

They were not; notably none of the parcels was landlocked, so the claimed easement was one of convenience rather than necessity or benefit

Reasoning

The court perused both survey plans and found a road below the original parcel, so no parcel was landlocked. The claim was for convenience, not the benefit of a right of way as envisioned by an easement. The dominant tenement had been subdivided into four parcels, and it was not clear the access road was retained on any subdivision, so the appellants' land changed its nature and any easement attached to the original title could not be claimed as of right.

p. 7
03

Whether an easement can arise from the alleged unregistered mutation forms executed by the respondent's deceased husband

Holding

No; the forms were not registered and had no force of law, and an easement requires a conscious act in writing noted on the certificate of title

Reasoning

Although it was claimed the respondent's late husband signed mutation forms excising the access, the respondent denied this as forgery. The court found the forms were unregistered and of no legal force. Statute requires an easement to be created in writing and noted on the title, which was not done. The arrangement gleaned from the evidence was a mutual verbal convenience agreement, not a grant of a right of way.

p. 8
04

Standard of review on a first appeal

Holding

The appellate court reappraises evidence and reaches its own conclusions but defers to trial court findings of fact unless clearly erroneous

Reasoning

A first appeal is a valuable right requiring the appellate court to reappraise the evidence and arrive at independent conclusions. However, trial courts are finders of fact and their findings merit a high degree of deference; factual conclusions are overturned only if clearly erroneous, while conclusions of law receive higher scrutiny.

p. 6

Legal principles established

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  • An easement may be acquired under section 32(1)(c) of the Limitation of Actions Act only where the way, watercourse or use of water has been enjoyed peaceably, openly, as of right and without interruption for twenty years ending within the two years immediately preceding the institution of the action
  • An easement is creatable only by the conscious act in writing of the parties, including the owner of the servient tenement, and must be noted in the certificate of title
  • The four essential characteristics of an easement follow Re Ellenborough Park: dominant and servient tenements, capability of forming the subject matter of a grant, accommodation of the dominant land, and different owners
  • Following subdivision of the dominant tenement, an easement attached to the original title cannot be claimed as of right by the owners of the resultant parcels where the access road was not retained on the subdivisions
  • On a first appeal the appellate court reappraises the evidence and reaches its own conclusions, but findings of fact are accorded a high degree of deference and will only be overturned if clearly erroneous

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
Environment and Land Court (High Court) at Murang'a
ELC Civil Suit No. 422 of 2017 (OS)
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction (Rules of this Court, Rule 31(1)(a) referenced)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Esther Wanjiku Mwangi & 3 others v Wambui Ngarachu & 2 others", Case Analysis (2025). Civil Appeal (as per memorandum of appeal dated 19th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/555/eng@2025-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.