Regional Container Freight Station Ltd v Kenya Pipeline Co. Ltd & another (Environment & Land Case E120 of 2022) [2024] KEELC 4637 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that limitation and easement disputes need evidence, so a landowner's suit over a registered wayleave will proceed to trial.
What this practically means
#Executive summary
#Key legal issues
#Definition and test for a preliminary objection
The objections were tested against Mukisa Biscuits and Oraro v Mbaja: only pure points of law qualify.
The court recited the Mukisa Biscuits formulation that a preliminary objection raises a pure point of law argued on the assumption that the facts pleaded by the other side are correct, and Ojwang J's elaboration in Oraro v Mbaja that a claim bearing factual aspects calling for proof is not a true preliminary objection.
Whether the suit is time barred under Sections 4(2) and 32 of the Limitation of Actions Act
It cannot be determined at the preliminary stage; no evidence exists on registration of the easement or when the Applicant became aware of it, and no extension of time was sought under Section 28.
The court noted Section 28 allows extension of time for good cause but must be invoked, and was not. Since the Applicant says it only learned of the registered wayleave in January 2022 on a search, when the cause of action accrued is a factual question requiring evidence, making striking out premature.
Whether an easement/wayleave has crystallised under Section 32
This too is a matter of fact requiring evidence and cannot be resolved on a preliminary objection.
Although Section 32 confers an absolute and indefeasible easement after twenty years' peaceable, open enjoyment, and the 1st Defendant claimed enjoyment since 1978, establishing the period and manner of enjoyment, registration and notice are factual matters unfit for determination without trial.
Legal principles established
#- A preliminary objection must be founded on a pure point of law; if facts are involved they must not be contested.
- Section 32 of the Limitation of Actions Act creates an indefeasible easement right after twenty years' peaceable, open enjoyment as of right without interruption.
Court orders
#- 1.The application (preliminary objection) is not merited and is dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (not expressly stated in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Regional Container Freight Station Ltd v Kenya Pipeline Co. Ltd & another (Environment & Land Case E120 of 2022) [2024] KEELC 4637 (KLR)", Case Analysis (2024). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4637/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.