Kilifi Plantations Limited & another v Kilifi Boatyard Limited; Kenya Forest Service & another (Interested Parties) (Environment & Land Case 41 of 2023) [2024] KEELC 4262 (KLR)
The bottom line
#A Kenyan court ordered landowners to stop blocking a road used for over 40 years, protecting a business's right of access while the case continues.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant/Applicant established a prima facie case with probability of success entitling it to an injunction restraining closure of the access road
Yes. The court found the access road has existed and served as an easement for over 40 years, and its closure without considering the survey reports acted contra the earlier ruling of 23rd October 2023 and the doctrine of lis pendens because it altered the substratum of the suit.
The court recounted that its own ruling of 23 October 2023 dismissed the plaintiffs' injunction because the suit property is public mangrove forest under Proclamation No. 44 of 1932, as affirmed by the Supreme Court in Pati Limited v Funzi Island Development Limited. The respondents' closure of an access road in continuous use for over forty years, after the applicant's lease expired, sought to alter the substratum of the pending suit and relied on unnamed third-party owners. Having established a prima facie case, the applicant was entitled to relief on the first Giella condition without considering the rest.
Whether the applicants' claimed easement over the access road is established
The court accepted that the access road has been enjoyed openly and without interruption for over forty years, satisfying the twenty-year prescription period for an absolute and indefeasible easement, and that the respondents gave no reason for closing a road of such longevity.
Relying on Francisca Wanza Nthenge v Mwania Cooperative Society quoting Kamau v Kamau [1984], the court held that a way enjoyed peaceably, openly and as of right for twenty years becomes absolute and indefeasible. The applicant had occupied the suit property since 2001 (predecessor since 1982) and used the road uninterruptedly. The respondents asserted third-party constitutional property rights but did not identify those parties, and did not explain why the road was closed after existing for over forty years.
Legal principles established
#- The conditions for a temporary injunction in Giella v Cassman Brown are to be addressed sequentially; where the first condition (prima facie case) is satisfied, the court need not proceed further.
- An easement enjoyed peaceably, openly, as of right and without interruption for twenty years is absolute and indefeasible under the law on limitation of actions.
- The legal status of mangrove forests declared in Proclamation No. 44 of 1932 was saved by the Third Schedule of the Forest Conservation and Management Act, and no person can claim proprietary rights over a gazetted forest.
Court orders
#- 1.An injunction restraining the Plaintiffs/Respondents, whether by themselves, their employees, officers, servants, contractors, agents or licensees (or any one of them) or any other person with purported interest, howsoever, from prohibiting the Defendant's/Applicant's access to the public road passing through the properties known as Kilifi Group V 1628, Kilifi Group V/1629 and CR 79667, CR 61950, CR 61951 and any other adjacent property, leading to all that property known as Kilifi Group V 122, pending the hearing and determination of this suit
- 2.The application dated 27th March 2024 allowed with costs to the Defendant/Applicant
- Jurisdiction invoked
- Section 13(7) of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilifi Plantations Limited & another v Kilifi Boatyard Limited; Kenya Forest Service & another (Interested Parties) (Environment & Land Case 41 of 2023) [2024] KEELC 4262 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4262/eng@2024-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.