Siror (Suing as the Administrator of the Estate of the Late Chepsiror Arap Sang) & another v Cheruiyot & 3 others (Environment & Land Case E036 of 2022) [2024] KEELC 3650 (KLR)
The bottom line
#The Environment and Land Court in Kapsabet confirmed that a community that paid for a right of way in 2002 owns it, and dismissed the landowners' suit.
What this practically means
#Executive summary
#Key legal issues
#Import of the 2002 and 2021 sale agreements
The agreements were for acquisition of easements by way of right of way over Nandi/Kipsigak/38
The Court examined the text of the 2002 agreements for sale of a strip of land (0.5 acres, 5 metres by 328/378 metres) for a public road reserve and the 2021 agreement widening it to 9 metres/0.8 acres. It found their import, from the text, to be acquisition of easements to create a public road within the suit parcel, guided by Kamau vs Kamau on equitable creation of easements.
Performance of the agreements
The 2002 agreements were performed; only the 2021 agreement went unperformed, but the right of way had already crystallized
The defence witnesses testified to full payment of Kshs 90,200/=, and PW1 conceded uncertainty as to whether the balance had been paid, with the recipient (Selina) not called as a witness. The road's use since 2002 and construction of culverts evidenced performance. Since the plaintiffs never pleaded the 2002 agreements, non-performance of the 2021 agreement could not ground cancellation of the accrued easement.
Whether an easement was acquired
Yes - by deed/purchase, not by prescription; Section 32 of the Limitation of Actions Act did not apply
Having purchased the strip measuring 0.5 acres, the community owns the easement; the Estate of Chepsiror ceased to have an interest in the sold portion. Registration against the title was pending, but acquisition by deed was complete, so the 20-year prescriptive route was unnecessary.
Import of the partial settlement agreement
The partial mediation settlement valuing the parcel at Kshs 3,000,000/= was set aside as unconscionable and illegal
The defendants testified the Kshs 3,000,000/= figure was imposed by the mediator on the premise that the County Government or NG-CDF would pay. Since the community had already purchased and fully paid for the 0.5 acres, burdening them or non-parties (County Government, NG-CDF) with payment for the same parcel was unconscionable and illegal, warranting setting aside the settlement.
Legal principles established
#- An agreement to grant an easement for valuable consideration is treated in equity as granted between the parties
- Parties are bound by their pleadings and evidence at variance with pleadings must be disregarded
- A right of way acquired by purchase under a deed does not depend on prescriptive acquisition under the Limitation of Actions Act
Court orders
#- 1.The Plaintiffs' suit is dismissed with costs
- 2.The Defendants and the Olangata–Irimis Community are entitled to use 5 metres by 378 metres of Nandi/Kipsigak/38 as purchased
- 3.The easement shall be curved and noted in the register of Nandi/Kipsigak/38 as a right of way belonging to the Olangata–Irimis Community
- 4.The Olangata–Irimis Community is restricted to the said measurements unless they agree with the owners to vary the measurements
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning land parcel Nandi/Kipsigak/38 (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Siror (Suing as the Administrator of the Estate of the Late Chepsiror Arap Sang) & another v Cheruiyot & 3 others (Environment & Land Case E036 of 2022) [2024] KEELC 3650 (KLR)", Case Analysis (2024). Not stated in judgment (Environment and Land Court, Kapsabet). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3650/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.