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Court of AppealDismissedCivil Appeal E042 of 2020· [2025] KECA 2206 (KLR)

Njau & another v Nderitu

Court of Appeal
10 December 2025
5,408 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that ongoing trespass on land is never too late to sue over, but landowners must still prove the trespass actually happened.

What this practically means

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Executive summary

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The appellants, registered owners of plots 340 and 344 in Ol joro Orok West Settlement Scheme, sued the respondent for eviction and injunction, alleging he trespassed by hiving off strips of their land in 1974 to create a cattle path to a dam. The ELC at Nyahururu (Oundo, J) dismissed the suit, holding that the path demarcated by the Settlement Fund Trustees created an equitable easement and that the claim, filed 39 years after the cause of action arose, was time barred under sections 4(2) and 7 of the Limitation of Actions Act. On appeal, the Court of Appeal (Warsame, Ngugi and Odunga, JJA) framed two issues: limitation and easement. On limitation, the Court held the trial judge erred: continued unauthorised occupation is a continuing trespass giving a fresh cause of action each day, following Muthiora and Challo, so the claim was not time barred. On easement, however, the Court found the access road was reserved in the letters of allotment for the benefit of the public; applying Ngambo Estate, a public right of way is a dedication to the public and not an easement capable of prescriptive acquisition. The Court also found PW3's evidence inconclusive and DW2's evidence confirmed the Government-created road. Since the appellants failed to prove trespass by the respondent, the trial court's dismissal could not be faulted. The appeal was dismissed, but in light of the Court's finding on limitation, no order was made as to the costs of the appeal. The judgment binds subordinate courts on continuing trespass and the public-right-of-way distinction.

Key legal issues

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01

Whether the trespass claim was time barred under sections 4(2) and 7 of the Limitation of Actions Act

Holding

The trial judge erred: possession of land, if unauthorised, is a continuing trespass giving a fresh cause of action each day, so the claim was not time barred.

Reasoning

Relying on Salmond on Torts, Clerk & Lindsell, Konskier v Goodman and this Court's decision in Muthiora, the Court held that continued unauthorised occupation is a continuing tort; each continuance is a fresh trespass with a new cause of action arising daily, so limitation does not bar the claim while the trespass continues.

p. 6
02

Whether an easement existed over plots 340, 341 and 344

Holding

No easement existed: the access road was reserved in the letters of allotment for the benefit of the public, and a public right of way is not an easement; nor did the appellants prove trespass.

Reasoning

DW2 confirmed the right to provide access roads was reserved in the allotment letters. Applying Ngambo Estate, a public right of way is a dedication to the public, distinct from an easement, and cannot be acquired by prescription. The trial judge's finding of an equitable easement was thus wrong in principle, but the appeal still failed because trespass was not proved.

p. 9
03

Whether the trial court's dismissal of the suit should stand

Holding

Yes. Although the limitation finding was wrong, the appellants failed to prove trespass, so the dismissal could not be faulted.

Reasoning

The Court re-appraised the evidence, finding PW3's evidence inconclusive and DW2's evidence confirming the Government-created access road. Since the appellants did not prove unauthorised intrusion by the respondent, the ultimate dismissal of the suit was upheld despite the error on limitation.

p. 9

Legal principles established

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  • Continuous trespass gives rise to a fresh cause of action from day to day and is not time barred under section 4(2) of the Limitation of Actions Act.
  • A right of way reserved in letters of allotment for the benefit of the public is a public right of way, not an easement, and cannot be acquired as a prescriptive easement.
  • An appellate court defers to trial court findings of fact unless clearly erroneous, while conclusions of law receive higher scrutiny.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to the costs of this appeal
On appeal from
ELC Court at Nyahururu
ELC Suit No. 77 of 2017
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (Rule 31(1)(a) invoked); appeal against ELC judgment

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, "Njau & another v Nderitu", Case Analysis (2025). Civil Appeal E042 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2206/eng@2025-12-10

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