Bernardi v Nairobi City Water & Sewerage Company & another (Environment & Land Case 393 of 2015) [2022] KEELC 3158 (KLR)
The bottom line
#A landowner suing over water infrastructure lost because the claim was filed nearly 30 years too late, and long, open use of the watercourse had created a permanent easement.
What this practically means
#Executive summary
#Key legal issues
#Limitation of action for recovery of land
The cause of action for recovery of vacant possession first accrued to the Plaintiff's predecessor in title in 1985 and expired in 1997; the suit filed in 2015 was statute barred
The water infrastructure was erected on the suit property in 1985 when Susan Roberts was the registered owner. No evidence of ongoing negotiations over compensation was tendered. Under Sections 7 and 17 of the Limitation of Actions Act, time runs from accrual to the person through whom the plaintiff claims, and upon expiry of twelve years the title of the claimant to the land is extinguished.
Acquisition of easement by prescription
The watercourse and use of water have been enjoyed openly, peaceably and without interruption since 1985, conferring an absolute and indefeasible easement under Section 32
The water reservoir and distribution infrastructure have served Karen and Lang'ata since 1985. Section 32 of the Limitation of Actions Act prescribes that twenty years' peaceable enjoyment of a watercourse as an easement renders the right absolute and indefeasible. The easement survives changes in ownership and negates the plaintiff's right to recover the portion.
Claim against the 2nd Defendant
The suit against the 2nd Defendant is misconceived since its mandate over the water services terminated via Legal Notice No. 177 of 2013 and it no longer occupied or operated the facility
The 2nd Defendant operated the water services on behalf of the City Council of Nairobi pursuant to the Water Act 2002, but its mandate was reversed by Legal Notice 177 of 2013, vesting operations in the 1st Defendant. By the time of filing, the 2nd Defendant had no rights, interests or occupation over the property.
Appropriateness of the reliefs sought
None of the reliefs could issue: the mandatory injunction was sought as a misconceived substantive relief, eviction was statute barred, and mesne profits were unpleaded and unproved
A mandatory injunction is an interlocutory remedy grantable only in special circumstances; as a final substantive relief the claim failed. An eviction order cannot issue on a suit commenced beyond the 12-year limitation period. Mesne profits, akin to special damages, required specific pleading with particulars and proof, none of which was furnished.
Legal principles established
#- An action to recover land may not be brought after twelve years from the date the right of action accrued, including where it first accrued to a predecessor in title through whom the claimant claims
- An easement over land enjoyed peaceably, openly and without interruption for twenty years becomes absolute and indefeasible
- Mesne profits must be specifically pleaded with particulars and proved, akin to special damages
- The crystallization of an easement is not disrupted by a change of ownership of the land
Court orders
#- 1.The Plaintiff's suit is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernardi v Nairobi City Water & Sewerage Company & another (Environment & Land Case 393 of 2015) [2022] KEELC 3158 (KLR)", Case Analysis (2022). Not stated in judgment (Plaint dated 12th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3158/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.