Equator Inn Limited t/a Tsavo Inn Hotel v National Oil Corporation of Kenya Limited [2017] KEELC 3028 (KLR)
The bottom line
#A Kenyan hotel owner won temporary protection of its long-used highway access, showing 20+ years of unchallenged passage can create lasting property rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for an interlocutory injunction
Yes — the Plaintiff established a reasonable legal and evidential basis constituting a prima facie case based on a right of way enjoyed for over 43 years
The court applied the Giella v Cassman Brown criteria. It found it undisputed that the Plaintiff had enjoyed a right of way through the Defendant's land over a long period, and that the Defendant's erection of a wall blocking the hotel entrance triggered the suit. Whether the enjoyment had crystallized into an absolute easement under Sections 28 and 32 was left to the substantive hearing, but the Plaintiff's pleaded claim was sufficient at the interlocutory stage.
Whether damages would be an adequate remedy
No — damages would not be an adequate remedy in the circumstances of the dispute
The court was satisfied that damages would not adequately compensate the Plaintiff. This was informed by the Plaintiff's submissions that blockage of the entrance would destroy the historical value and legacy of a hotel operating for over 43 years, affecting future earnings, and that the access passage covered only a fraction of the Defendant's property.
Whether the Plaintiff's suit is res judicata
No — the parties, subject matter and causes of action in the prior cases differ from those in the present suit
The court examined the exhibits to Pauline Kimotho's affidavit. Both prior matters involved Rajni Desai t/a Tsavo Inn Service Station and concerned termination of a petrol station dealership licence, whereas the present dispute is between Equator Inn Limited t/a Tsavo Inn Hotel and concerns closure of an access way. The doctrine of res judicata therefore could not be invoked.
Whether the right of way has crystallized into an absolute and indefeasible easement
Not determined at the interlocutory stage — left for the substantive hearing
The court held that whether continuous enjoyment for over 43 years crystallized into an easement under Section 28 of the Land Registration Act and Section 32 of the Limitation of Actions Act, and whether the easement is extinguished by the existence of alternative access to the highway, are questions for the substantive hearing.
Legal principles established
#- A right of way is an easement recognized as an overriding interest under Section 28 of the Land Registration Act
- Under Section 32 of the Limitation of Actions Act, an easement crystallizes into an absolute and indefeasible right upon twenty years of peaceable, open and uninterrupted enjoyment
- The running of time for crystallization of an easement is not disrupted by change of ownership of the subject land
- Where a plea of res judicata is invoked and proved, the court should strike out the offending suit
Court orders
#- 1.Pending the hearing and determination of the suit, the Defendant, its agents and servants are restrained from blocking the Plaintiff's access to the Nairobi-Mombasa Highway through the Defendant's piece of land, L.R. No. 11794/2 (formerly 11487/2), specifically the access which is the subject matter of the dispute
- 2.In the event that there is any wall or other form of blockage erected by the Defendant, the Plaintiff shall be at liberty to remove it to allow access to its hotel as before, with the Area OCS ensuring law and order during the removal
- 3.The suit is transferred to Wote ELC in Makueni County for hearing and disposal; mention at Wote ELC on 25/4/2017
- 4.The Plaintiff shall have costs of the Application
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (application for interlocutory injunction in a land suit); no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Equator Inn Limited t/a Tsavo Inn Hotel v National Oil Corporation of Kenya Limited [2017] KEELC 3028 (KLR)", Case Analysis (2017). Nairobi ELC Case (Suit) of 2015 — filed 30/9/2015 (Plaint dated 30/9/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3028/eng@2017-04-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.