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ELCPartially AllowedELC Case No. 79 of 2020· [2020] KEELC 92 (KLR)

Peony Management Company Limited v Desterio Oyatsi [2020] KEELC 92 (KLR)

Environment and Land Court
30 November 2020
4,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Peony Management Company Limited, the management company for Peony Estate on L.R. Nos. 330/1348 and 1349 off Hatheru Road, Lavington, sued Desterio Oyatsi, the registered proprietor of adjoining L.R. No. 330/561, after he began erecting a gate in November 2019 on the road the estate used to access Hatheru Road. The Plaintiff sought injunctions, declarations of entitlement based on easement of necessity, prescription and acquiescence, and compensation in the alternative. The Defendant counterclaimed, relying on Sections 24(a) and 20 of the Land Registration Act and Articles 40 and 64 of the Constitution, alleging trespass and encroachment and seeking damages of Kshs. 200,000, removal of structures, and mesne profits of Kshs. 50,000 per month from January 2012. Due to Covid-19, parties admitted documents and witness statements, and the court conducted a site visit on 21/8/2020. Survey plans showed the Plaintiff's land abutted Hatheru Road and the disputed strip belonged to the Defendant's parcel, on which the Plaintiff had also encroached by about 0.02 hectares. The court held the Plaintiff failed to prove the 20-year prescriptive period, its use spanning only about eight years, and its easement and adverse possession claims under the Limitation of Actions Act failed. The Defendant's mesne profits claim also failed because he acquiesced and slept on his rights. The court ordered an easement under Section 98 of the Land Registration Act upon payment of consideration, a valuation of the encroached portion within 60 days to fix compensation, awarded the Defendant the costs of the suit, and directed the Plaintiff to bear the valuation and registration costs.

Key legal issues

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01

Whether the Plaintiff acquired an easement by prescription under Section 32 of the Limitation of Actions Act

Holding

The claim failed because the 20-year statutory period was not established

Reasoning

The statutory period for an easement under Section 32 is 20 years. The Plaintiff pleaded that the homeowners purchased the apartments in 2012, only eight years before the dispute, and did not lead evidence supporting its assertion of 23 years' use. Its own title documents showed the title came into existence in 2013 and the company was incorporated in 2012, so the prescriptive period could not be made out.

p. 4
02

Whether the Defendant acquiesced in the Plaintiff's use and encroachment

Holding

The court found the Defendant had acquiesced and slept on his rights, which defeated the counterclaim reliefs

Reasoning

The Defendant acquired his land in 2002 and must have known of the development of Peony Estate next door, including the boundary wall and entrance on the disputed strip. Until November 2019 he neglected to ascertain the position of his beacons. His conduct amounted to a waiver of his claim over the encroached portion, and demanding demolition of part of the Plaintiff's development would be unreasonable given the lack of any other access.

p. 4
03

Whether the Plaintiff had direct access to Hatheru Road over its own land

Holding

The survey plans showed the Plaintiff's land abutted Hatheru Road and the disputed strip belonged to the Defendant's parcel

Reasoning

Survey plan number 88/83 of 1959 showed that L.R. No. 330/275, later amalgamated into the Plaintiff's land, abutted Hatheru Road, and the narrow strip used for access formed part of L.R. No. 330/277 from which the Defendant's land was created. Folio Register 60/6 confirmed this. The 2013 survey plan showed the Plaintiff's land had direct access to the end of Hatheru Road and that the Plaintiff had encroached on the Defendant's land.

p. 3
04

What remedy should issue given the findings

Holding

The court ordered an easement under Section 98 of the Land Registration Act with compensation for the encroached portion

Reasoning

Although the Plaintiff failed on prescription and adverse possession, its development depended on the disputed access and the Defendant had acquiesced. The court fashioned an equitable remedy: an easement created in favour of the Plaintiff under Section 98 of the Land Registration Act upon payment of consideration, and a valuation of the 0.02 hectares encroached within 60 days to fix compensation, with the Plaintiff bearing the associated costs.

p. 4

Legal principles established

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  • Where a party has slept on his rights and acquiesced in another's use of land, delay and lapse of time may defeat reliefs sought in respect of that land
  • An easement over registered land may be created by court order under Section 98 of the Land Registration Act upon payment of consideration

Court orders

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  1. 1.An easement to be created in favour of the Plaintiff for the portion of the Defendant's land which the Plaintiff has been using to access Hatheru Road in accordance with Section 98 of the Land Registration Act
  2. 2.The Plaintiff to pay consideration for the creation of the easement
  3. 3.Parties directed to undertake a valuation of the encroached portion of the Defendant's land within 60 days of the date of the judgment to determine compensation payable by the Plaintiff to the Defendant
  4. 4.If parties do not agree on the value within 60 days, they to file submissions for the court to determine the reasonable compensation payable to the Defendant
  5. 5.The Defendant awarded the costs of the suit
  6. 6.The Plaintiff to meet the costs for the valuation and for the preparation and registration of the easement

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 64
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 20
  • Land Registration ActSection 28
  • Land Registration ActSection 18(2)
  • Land Registration ActSection 98
  • Limitation of Actions ActSection 32
  • Limitation of Actions ActSection 7
  • Law of Limitation of Actions ActSection 32
  • Land ActSections 139 and 140

Cases cited (6)

  • Kamau v Kamau
    [1984] eKLR
  • Aquila Properties Limited v Bhubendra Patel
    [2017] eKLR
  • Peter Thuo Kairu v Kuria Gacheru
    [1988] 2 KLR
  • Dalton v Henry Augus & Company
    [1881] 6 App 86
  • Esther Wanjiku Mwangi & 3 Others v Wambui Ngarachu Chege
    [2019] eKLR
  • Re Ellenborough Park, Re Davies (deceased), Powell and Others v Maddison and Another
    [1955] 3 All ER 667
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (the judgment does not cite a specific enabling provision)

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, "Peony Management Company Limited v Desterio Oyatsi [2020] KEELC 92 (KLR)", Case Analysis (2020). ELC Case No. 79 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/92/eng@2020-11-30

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