Peony Management Company Limited v Desterio Oyatsi [2020] KEELC 92 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff acquired an easement by prescription under Section 32 of the Limitation of Actions Act
The claim failed because the 20-year statutory period was not established
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.
Whether the Defendant acquiesced in the Plaintiff's use and encroachment
The court found the Defendant had acquiesced and slept on his rights, which defeated the counterclaim reliefs
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.
Whether the Plaintiff had direct access to Hatheru Road over its own land
The survey plans showed the Plaintiff's land abutted Hatheru Road and the disputed strip belonged to the Defendant's parcel
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.
What remedy should issue given the findings
The court ordered an easement under Section 98 of the Land Registration Act with compensation for the encroached portion
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.
Legal principles established
#- 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
#- 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.The Plaintiff to pay consideration for the creation of the easement
- 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.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.The Defendant awarded the costs of the suit
- 6.The Plaintiff to meet the costs for the valuation and for the preparation and registration of the easement
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.