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ELCPartially AllowedNot stated in the judgment as provided (suit filed 15/10/21, Kwale ELC)· [2024] KEELC 5017 (KLR)

Bukachi v Diani Beachalets [2003] Limited (Environment & Land Case E004 of 2021) [2024] KEELC 5017 (KLR)

Environment and Land Court
2 February 2024
ADA.E Dena
7,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered owner of Kwale/Diani Beach Block/1813 subdivided from the Defendant's parcel Kwale/Diani Beach Block/1554, sued over a beach access footpath promised under clause 3.6 of a sale agreement dated 23 September 2011. A deed of easement executed by both parties was misplaced at the Land Registry before registration. The Defendant provided access until May 2020 when it closed the gate, citing security breaches and the Plaintiff's alleged breaches of the deed conditions, including leasing and advertising the property for sale and failing to keep the gate locked. The Plaintiff sought a permanent injunction and specific performance. The court identified two issues: breach of clause 3.6 and entitlement to the prayers. It held that clause 3.6 only obliged the vendor to provide the footpath and did not require registration of a deed, so the alleged refusal to re-sign was not a breach; nor did the Defendant completely refuse to sign, having offered to do so at the Plaintiff's cost. However, the Defendant failed to prove the Plaintiff breached the deed's conditions - the lease was under five years, the sale never crystallized, and the theft allegations were not linked to the Plaintiff. The closure was therefore unjustified and amounted to a breach of clause 3.6. Declining a permanent injunction on balance of convenience grounds, the court ordered specific performance: the Defendant to execute the deed of easement, amended to include guest registration under tourism safety regulations, failing which the Deputy Registrar to execute it; the Plaintiff to bear registration costs; and each party to bear its own costs.

Key legal issues

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01

Whether the Defendant's alleged refusal to execute a fresh deed of easement breached clause 3.6 of the sale agreement

Holding

No breach. Clause 3.6 only obliged the vendor to provide a footpath easement and did not make registration of a deed a condition; and the Defendant did not completely refuse to sign, only conditional on the Plaintiff bearing costs.

Reasoning

Clause 3.6 provided only for a footpath whose specifications were annexed; it did not provide for registration of a deed of easement as a condition precedent or subsequent. The documents were misplaced at the registry and the Defendant offered to re-sign provided the Plaintiff bore the costs, which the Plaintiff never took up. The Plaintiff produced no proof she prepared and forwarded a fresh set with an undertaking on costs.

p. 8
02

Whether the Defendant proved the Plaintiff breached conditions of the easement justifying closure of the beach access

Holding

No. The Defendant failed to prove breach of clauses 3 and 4 of the deed of easement; the closure was unjustified and constituted breach of clause 3.6.

Reasoning

The burden lay on the Defendant to prove the Plaintiff breached the deed conditions. The lease to Tuller was under 5 years and the sale never crystallized, so clause 4 was not breached. There was no evidence linking the Plaintiff to the gate being left open or to the thefts, and the Defendant's own security personnel controlled the gate. Access had been enjoyed dawn to dusk with the gate kept closed.

p. 10
03

Whether the Plaintiff was entitled to a permanent injunction or specific performance

Holding

The Plaintiff proved her case but specific performance, rather than a permanent injunction, was the appropriate remedy, with a security amendment to the deed.

Reasoning

A prima facie case existed but the court focused on the balance of convenience: the Defendant's security concerns on a public beach were legitimate and benefitted both parties. Both parties were willing to have the easement registered, and no timelines were necessary provided the gate remained locked at all times and guests were registered. Specific performance with a tailored amendment best balanced the neighbours' interests.

p. 11

Legal principles established

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  • A court cannot re-write a contract between the parties; parties are bound by their terms unless coercion, fraud or undue influence are pleaded and proved
  • An easement, once validly created, is annexed to the land so the benefit passes with the tenement
  • The party alleging breach of easement conditions bears the burden of proof; unproved allegations of breach do not justify closure of the easement
  • Courts may craft tailor-made remedies balancing neighbours' interests, including conditions such as security-compliant registration of guests

Court orders

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  1. 1.Orders of specific performance by the Defendant with the terms of clause 3.6 of the agreement for sale dated 23rd September 2011
  2. 2.Orders of specific performance by the Defendant to execute the deed of easement for registration of the easement against the register of Kwale/Diani Beach Block/1813, 1814 and 1815
  3. 3.Before execution, the deed shall be amended to include a provision for compliance with Tourism Regulations on safety, requiring registration of the Plaintiff's authorized guests on entry and exit
  4. 4.In default of the Defendant executing the deed of easement, the Deputy Registrar of the Environment and Land Court - Kwale Law Courts to execute the deed with the aforesaid amendment, and the Land Registrar Kwale to register the deed of easement as an encumbrance on the registers of the three parcels
  5. 5.The Plaintiff shall solely cater for registration of the easement and all costs and incidentals related to the same
  6. 6.Each party to bear its own costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 3B
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 28
  • Evidence Act (Chapter 80, Laws of Kenya)Sections 107(1), 108, 109
  • Constitution of KenyaArticles 10(1)(b), 10(2)(b), 159(2)(e)

Cases cited (10)

  • Nguruman Ltd Vs Jan Bonde Nielson & 2 Others
    (2014) eKLR
  • Mrao Ltd Vs. American Bank of Kenya Ltd
    (2003) eKLR
  • Waithaka Vs Industrial and Commercial Development Cooperation
    (2001) eKLR
  • Kenleb Cons Ltd Vs. New Gatitu Service Ltd
  • Reliable Electricals Engineers Ltd Vs. Mantrac Kenya Limited
    (2006) eKLR
  • Kamau v Kamau
    (1984) eKLR
  • National Bank of Kenya Limited Vs. PipePlastic Samkolit (k) Ltd
    (2002) EA 503
  • Giella Vs. Cassman Brown
    (1978) EA
  • Toshike Construction Company Limited v Harambee Co-operative Savings and Credit Society Limited
    [2021] eKLR
  • Daniel Toroitich Vs Mwangi Stephen Muereithi
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land and an easement

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bukachi v Diani Beachalets [2003] Limited (Environment & Land Case E004 of 2021) [2024] KEELC 5017 (KLR)", Case Analysis (2024). Not stated in the judgment as provided (suit filed 15/10/21, Kwale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5017/eng@2024-02-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.