Fairview Estate Limited v Ann Wangari Kirima & 2 others [2016] KEELC 129 (KLR)
The bottom line
#A Kenyan court confirmed that long, open use of a road over someone's land for 20 years creates a permanent legal right of access—even against the estate of a former Nairobi mayor.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success over the disputed access road by prescription
The Plaintiff established a prima facie case that it acquired an easement over the access road by prescription through long, open and uninterrupted use since 1978, the road's existence going back to 1924 and being acknowledged in a 1967 maintenance agreement signed by the late Kirima.
The court found uncontroverted documentary evidence (1924 indenture, 1967 maintenance agreement, survey and subdivision schemes, maps) showing an access road through Plot 79/1 used by the Plaintiff for over 38 years until blocked on 23rd April 2016. Section 32 of the Limitation of Actions Act makes a way enjoyed openly, peaceably and without interruption for 20 years absolute and indefeasible. Whether the easement is 20 metres or 16 feet wide remains for trial.
Whether easements can be acquired by prescription despite the Land Registration Act, 2012
Yes. Section 98(7) of the Land Registration Act deals only with the creation of easements and does not abolish prescription under the Limitation of Actions Act; section 28(c) and (h) of the Land Registration Act and section 7(b) of the Land Act expressly preserve prescriptive rights.
The court held that prescription is expressly recognised as a mode of acquiring title to land under section 7(b) of the Land Act, 2012, and that rights acquired under written law relating to limitation of actions are overriding interests under section 28(c) and (h) of the Land Registration Act. Had Parliament intended to abolish prescriptive easements, it would have amended the Limitation of Actions Act expressly. Courts should not whittle down rights absent express provision.
Whether Plot No. 79/1 was sub-divided such that the disputed road exists
On a prima facie basis, yes. Survey plan F/R 163/24 shows authentication by the Director of Surveys on 14th May 1983 and assignment of new numbers, so the plot remained sub-divided under the Survey Act despite non-registration, and the public road shown remains such until the plan is cancelled.
Under section 43(1) of the Survey Act, authenticated plans are presumed valid until the contrary is proved. The NLC letter of 22nd April 2016 confirmed the sub-division occurred save that plots were unregistered. The Plaintiff cannot be faulted for relying on the authenticated plan in subdividing its own land. The register still showing Plot 79/1 does not negate the sub-division.
Whether the succession cause order justified blocking the access road and whether non-disclosure disentitled the Plaintiff
The order of Lenaola J. permitted fencing of the estate property but did not direct blocking of the access road, and cannot sanitize the Defendants' acts. The Plaintiff was not guilty of material non-disclosure, and no ex parte order had been granted.
The court perused the order of 26th March 2013 and the pleadings in Nairobi ELC No. 1222 of 2015, finding neither would have swayed the application. The Defendants, believing the Plaintiff and Wanho to be trespassing, should have sued rather than take the law into their own hands; a party cannot retain an advantage obtained through a planned and blatant unlawful act.
Whether irreparable harm and balance of convenience favoured the Plaintiff
Having found a prima facie case the court did not need to decide irreparable harm, but was satisfied the loss could not be compensated in damages; in any event the status quo prior to the blockage had to be maintained given serious conflicts of fact.
The Plaintiff's business is dependent on the access road and its closure would cause loss not compensable by damages. The Defendants opposed a site visit to verify alleged alternative accesses, so that issue awaits trial. The court invoked the overriding objective to place the parties back on an equal footing pending trial.
Legal principles established
#- An easement is acquired under Section 32 of the Limitation of Actions Act once prescription is complete; registration under section 38 is a mere formality and does not condition the existence of the easement.
- Section 98(7) of the Land Registration Act, 2012 does not abolish the acquisition of easements by prescription under the Limitation of Actions Act.
- A right acquired over land by prescription attaches to the land and is not defeated by sub-division or transfer of the servient land.
- Once land is sub-divided and an authenticated survey plan produced, the parcel remains sub-divided for the purposes of the Survey Act until that plan is cancelled, notwithstanding non-registration of the new plots.
- Until the Director of Surveys withdraws or cancels an authenticated survey plan, the public road provided in the plan remains a public road.
- An order in a succession cause permitting fencing of estate property does not legalize the blocking of an access road in use for years.
- A party cannot be allowed to retain a position of advantage obtained through an unlawful act; a wrongdoer cannot keep what he has taken because he can pay for it.
- Where there are serious conflicts of facts, the trial court should maintain the status quo until the dispute is decided at the trial.
Court orders
#- 1.The Notice of Motion dated 27th April, 2016 is allowed in terms of prayers 3, 4, 5 and 6 thereof
- 2.Prayer 3: interlocutory injunction restraining the Defendants from obstructing or denying the Plaintiff access through the access road on L.R No. 79/1 pending determination of the suit
- 3.Prayer 4: temporary injunction restraining the Defendants from interrupting or interfering with the Plaintiff's right of access and quiet enjoyment of the road of access in dispute pending determination of the suit
- 4.Prayer 5: order directing the Defendants to remove the barriers and gate erected on the disputed road of access within the parcels formerly part of L.R No. 79/1
- 5.Prayer 6: order restraining the Defendants from mortgaging, selling, disposing of, alienating or damaging the access road in dispute until hearing and determination of the suit
- 6.The Plaintiff shall have the costs of the application
- Jurisdiction invoked
- Section 38(3) of the Limitation of Actions Act, Cap 22 (jurisdiction to vest easements acquired by prescription) and inherent civil jurisdiction over interlocutory applications
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fairview Estate Limited v Ann Wangari Kirima & 2 others [2016] KEELC 129 (KLR)", Case Analysis (2016). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/129/eng@2016-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.