Equator Inn Ltd t/a Tsavo Inn Hotel v National Oil Corporation of Kenya Ltd [2018] KEELC 273 (KLR)
The bottom line
#A Kenyan hotel owner who used a neighbour's land as an access road for over 20 years won a permanent court-protected right of way.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff acquired a prescriptive right of way over the Defendant's parcel
Yes - the Plaintiff enjoyed access through the Defendant's parcel for over 20 years, so an easement crystallized under the Limitation of Actions Act and s.28 of the Land Registration Act as an overriding interest
The court found unequivocal evidence that the Plaintiff acquired Tsavo Inn in the late 1970s and that the Defendant's parcel originally formed part of the Plaintiff's property, sold on to Caltex and successors. Access through the entrance where the tusks stand was enjoyed peacefully and openly until 2015 when the wall was built. Since more than twenty years of uninterrupted enjoyment had elapsed, the easement crystallized into an absolute and indefeasible right, which survived changes of ownership.
Whether the suit is res judicata given prior litigation between related parties
No - the prior Machakos ELC 287 of 2011 suit concerned termination of a petrol station dealership, a different issue, and the BPRT reference involved different parties
The court accepted the Plaintiff's counsel's submission that the earlier suit before the ELC at Machakos dealt with termination of a dealership granted by the Defendant, an issue distinct from the present right-of-way claim. The BPRT reference also involved different parties and subject matter. Both prior matters were therefore distinguishable and could not bar the present suit.
Whether special and general damages were payable
No - special damages were neither proved nor evidenced and general damages were refused
The court applied the settled rule that special damages must be specifically pleaded and strictly proved. Although the Plaintiff sought assessed damages for loss of use from 1st May 2015, no details or evidence of loss were filed, and the Plaintiff's own witness admitted no evidence of noise pollution, run off or loss was adduced. General damages were equally refused for want of proof.
Legal principles established
#- An easement enjoyed peaceably, openly as of right and without interruption for twenty years becomes absolute and indefeasible
- The running of time for crystallization of an easement is not disrupted by a change of ownership of the subject land
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendant in terms of prayers (a), (b), (c) and (d) of the plaint
- 2.A declaration that L.R. No. 11794/2 is subject to an encumbrance in favour of a right of way for L.R. No. 11794/1
- 3.An injunction restraining the Defendant from constructing or further constructing a wall across the Plaintiff's access to the Nairobi-Mombasa highway or interfering with the Plaintiff's right of way
- 4.A mandatory injunction compelling the Defendant to remove any obstruction of the entrance to Tsavo Inn Hotel and the Plaintiff's right of way
- 5.A declaration that the Defendant's acquisition and registration as proprietor of L.R. No. 11794/2 is unlawful, null and void
- 6.Costs of the suit to the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land and a right of way
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Equator Inn Ltd t/a Tsavo Inn Hotel v National Oil Corporation of Kenya Ltd [2018] KEELC 273 (KLR)", Case Analysis (2018). Machakos ELC Case of 2015 (Plaint dated 30th September, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/273/eng@2018-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.