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ELCPartially AllowedOriginating Summons and Notice of Motion dated 17 July 2017 (Murang'a)· [2017] KEELC 472 (KLR)

Esther Wanjiku Mwangi & 3 others v Wambui Ngarachu [2017] KEELC 472 (KLR)

Environment and Land Court
18 December 2018
JKJ G Kemei
3,497 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Murang'a landowners blocked from using an access road for years won court-ordered reopening within 30 days, while their full easement claim awaits trial.

What this practically means

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Executive summary

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The Applicants, registered proprietors of Loc.8/Kaganda/1654, 1655, 1656 and 1657 (subdivisions of the late father's parcel Loc.8/Kaganda/77), filed an Originating Summons under Order 37 Rule 7 and Sections 7, 17, 32(1) and 38(3) of the Limitations of Actions Act seeking declarations that they are entitled to an easement of 58m by 3m over Loc.8/Kaganda/73, used as access since 1963, held by the deceased Ngarachu Chege in trust for them, and that the strip is extinguished. Simultaneously they sought an interim mandatory injunction compelling the Respondent, administrator of the deceased's estate, to reopen the access road and restore water pipes she had diverted after closing the path in 2014. The Respondent opposed, raising the court's jurisdiction given the pending Murang'a Succession Cause No. 184 of 2012 and an existing injunction against the District Surveyor, and arguing that granting the application would constitute intermeddling with a deceased's estate under Section 45 of the Succession Act. The court found it had jurisdiction under Article 162(2)(b) and the Environment and Land Court Act, holding that claiming an easement of the nature of an overriding interest is not intermeddling. On the injunction, it held that no special circumstances justified an interim mandatory injunction, the issues requiring trial; but applying Giella v Cassman Brown, it found a prima facie case, noting admitted mutual access and long user, and irreparable harm. The court ordered the Respondent to reopen the access road and restore the water pipes within 30 days, failing which the Applicants could open it with O.C.S oversight, and directed pretrial compliance.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over a claim for an easement against a deceased's estate

Holding

The court found it had jurisdiction; the claim for an easement based on dominant and servient tenements falls squarely within Article 162(2)(b) and the ELC Act, and opening an access road is not intermeddling with a deceased's property.

Reasoning

Article 162(2)(b) establishes the ELC with original and appellate jurisdiction over land use, occupation and title disputes. Section 13 of the ELC Act confers wide powers over disputes relating to land. The claim here is to an easement by long user over the servient tenement. The High Court injunction in the succession cause was directed at the District Surveyor restraining survey, not at the parties' access rights; claiming an overriding-interest easement is distinct from intermeddling under Section 45 of the Succession Act.

p. 4
02

Whether an interim mandatory injunction should issue

Holding

No interim mandatory injunction was warranted; the originating summons raised substantial matters requiring trial. Interim preservation orders were instead granted.

Reasoning

Mandatory injunctions at the interlocutory stage are exceptional: per Nandan Pictures and Shepherd Homes, they issue only to restore the status quo or where the defendant alters the position after notice of the suit. No special circumstances existed here. The issues in the originating summons (acquisition of an easement by 20 years' user) require evidence at trial and cannot be determined interlocutorily; granting the mandatory injunction as filed would substantially determine the suit without trial.

p. 6
03

Whether the Applicants established a prima facie case with probability of success

Holding

Yes - dominant and servient tenements were established, the Respondent admitted a mutual access existed and that she closed the road, and long usage of the path was on record; irreparable harm was also shown.

Reasoning

Applying Giella v Cassman Brown, the court found adjoining plots owned by different persons with the benefit of access to road and water flowing between them. The Respondent admitted the existence of a mutual access before the parties' predecessors' demise and admitted closing it, and did not deny long user by the Applicants, neighbours and the public. The foreclosure of the Respondent's right under the 20-year rule, if proved, satisfied the irreparable harm limb, rendering the balance of convenience limb unnecessary.

p. 6

Legal principles established

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  • An easement enjoyed peaceably, openly as of right and without interruption for twenty years is absolute and indefeasible and attaches to the land even on sale to a third party, without need for survey or excision
  • A mandatory injunction at the interlocutory stage is granted only in unusually strong and clear cases, typically to restore the status quo and not to establish a new state of things
  • Asserting a right of way of the nature of an easement over a deceased's land is not intermeddling with the estate

Court orders

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  1. 1.Pending the hearing and determination of the suit, the Respondent directed to open up the access road passing through Loc.3/Kaganda/73 and restore the water pipes laid along the access road within 30 days
  2. 2.In default, the Applicants be at liberty to open the access road, with the O.C.S of the area ensuring law and order during the opening
  3. 3.Parties be at liberty to set the matter down for pretrial and compliance to Order 11 of the Civil Procedure Rules at the earliest instance

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7; Order 40 Rule 1; Order 11
  • Limitations of Actions ActSections 7, 17, 28(c), 32(1), 38(3)
  • Civil Procedure ActSections 3A, 63(c)
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActNo. 19 of 2011, jurisdictional provisions
  • Land Registration ActSection 28(c)
  • Succession ActSection 45

Cases cited (10)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Mrao vs First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    (2014) EKLR
  • Joseph Mbugua Gichanga vs Co-operative Bank of Kenya Ltd
    Civil Case No. 74 of 2000 (2005) KLR
  • Kamau vs Kamau
    (1984) eKLR
  • Equator Inn Limited t/a Tsavo Inn Hotel v National Oil Corporation of Kenya Limited
    (2017) eKLR
  • In Re the Matter of the Interim Independent Electoral Commission
    S.C. Constitutional Application No. 2 of 2011; [2011] eKLR
  • Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others
    S.C. Application No. 2 of 2012; [2012] eKLR
  • Nandan Pictures Ltd. Vs. Art Pictures Ltd & others
    AIR 1956 Cal 428
  • Shepherd Homes Limited V. Sandham
    [1971] 1 CH. 34
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act No. 19 of 2011

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, "Esther Wanjiku Mwangi & 3 others v Wambui Ngarachu [2017] KEELC 472 (KLR)", Case Analysis (2018). Originating Summons and Notice of Motion dated 17 July 2017 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/472/eng@2017-12-18

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