Dreamers Limited v Bhagisana Limited; Chief Land Registrar & another (Interested Parties) (Environment & Land Case 191 of 2019) [2024] KEELC 1807 (KLR)
The bottom line
#A Nairobi court confirmed that using a neighbour's access road openly for over 20 years creates a permanent right of way, even over the owner's objections.
What this practically means
#Executive summary
#Key legal issues
#Whether an easement by prescription was created over L.R. No. 1870/1/527 in favour of L.R. No. 1870/1/528
Yes. The combined access was used openly and without interruption from 1994 until the Defendant's protest in July 2015, a period of over 20 years, creating an easement under Section 32 of the Limitation of Actions Act, an overriding interest under Section 28 of the Land Registration Act.
The court found the access had been used from the time the Plaintiff acquired the property in 1994 without restriction until the Defendant's letter of 21st July 2015, exceeding the 20-year period prescribed by Section 32 of the Limitation of Actions Act. Citing Kamau vs Kamau and Re Ellenborough Park, the court held the easement annexed to the dominant tenement and binds the Defendant as servient owner.
Whether the planning condition of a 'combined access' created rights in favour of the Plaintiff
Yes. 'Combined access' in the 1986 subdivision conditions means a common or joint access to be used by both plots.
Noting there is no statutory definition of 'combined access' or 'common access', the court read the 1986 Nairobi City Commission condition as requiring both subplots A and B to be served by one access from the road/street used jointly by both owners, rejecting the Defendant's attempt to distinguish 'combined' from 'common' access as artificial.
Whether the Plaintiff was entitled to the reliefs sought
Yes, on a balance of probability, and the declaratory and injunctive reliefs sought in the plaint were granted in full.
The evidence tendered supported the Plaintiff's case. Having found a prescriptive easement and that the planning condition conferred joint access rights, the court was satisfied the Plaintiff proved its case and granted all the declarations and injunctions sought. Costs were nonetheless waived to each party given the long neighbourly relationship.
Legal principles established
#- An easement may be acquired by twenty years' peaceable, open enjoyment as of right without interruption, and once created is annexed to the land, passing with the dominant and servient tenements
- Where a subdivision approval requires two plots to be provided with a combined access, the access way is to be used by both plots as a common or joint access
- A planning letter issued after a prescriptive easement has crystallised cannot disrupt the continuous use on which the easement was founded
Court orders
#- 1.A declaration that all that property known as L.R. No. 1870/1/527 is subject to an encumbrance in favour of a right of way for L.R. No. 1870/1/528 also known as 1870/528/1
- 2.An order of injunction restraining the Defendant, its agents, employees and/or servants from fencing off the Plaintiff's access to Mwanzi Road, harassing, threatening or otherwise adversely interfering with the Plaintiff's right of way in respect of L.R. No. 1870/1/527 and L.R. No. 1870/1/528 also known as 1870/528/1
- 3.A mandatory injunction compelling the Defendant, its agents, employees and/or servants to remove any obstruction imposed on the Common Access
- 4.A permanent injunction restraining the Defendant from constructing a boundary that would restrict the Plaintiff's use of the Common Access on L.R. No. 1870/1/527
- 5.A permanent injunction restraining the Defendant from restricting any access to the common amenities enjoyed by the Plaintiff over L.R. No. 1870/1/528 also known as 1870/528/1, including provision of water through the boreholes situated on L.R. 1870/1/527
- 6.Each party to bear own costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning a right of way/easement over land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dreamers Limited v Bhagisana Limited; Chief Land Registrar & another (Interested Parties) (Environment & Land Case 191 of 2019) [2024] KEELC 1807 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1807/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.