Maingey (Suing on His Own Behalf and on Behalf of the Fransiscan of Our Lady of Good Counsel Sisters Registered Trustees, David Masika, Evergreen Crops Limited, Waridi Limited, Daniel Mutisya Ndonye and Valley Brook Capital Limited) v Hillman & 3 others (Environment and Land Case 113 of 2015) [2025] KEELC 685 (KLR)
The bottom line
#A Kenyan court confirmed that 45 years of openly using a road creates a permanent legal right of way, even over land with clean title deeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs acquired a prescriptive easement (right of way) over 39 Quarry Road under section 32 of the Limitation of Actions Act
Yes - the plaintiffs proved open, peaceable use as of right for over 45 years, well beyond the statutory 20 years, giving them an absolute and indefeasible easement which binds the defendants' titles
The court found the road existed before Paul Maingey purchased the land in 1970 and was used by neighbours; the topographical maps of 1983 and 1996-97, the continuity and uniformity of the road observed on the site visit, and unshaken testimony of neighbouring users established long use as of right. The defendants found the road in existence when they obtained titles in 2012 and their registration could not defeat the accrued overriding interest.
Whether the road's omission from the deed plans and survey records defeats the claim
No - the question does not turn on survey records since an easement is an overriding interest not normally reflected in the register
The court held that prescriptive rights accrue from long uninterrupted use, not from registration documents. The failure by the Director of Surveys to include the road in the deed plans could not extinguish an accrued easement, and the defendants' claim of exclusive private ownership rested solely on their certificates of title.
Whether easement by necessity and the alleged alternative road affect the claim
The claim was pleaded solely as an easement by prescription; whether an alternative road exists is immaterial
The court distinguished easement by prescription (based on effluxion of time and adverse use) from easement by necessity (based on landlocking upon partition). Since the plaint was predicated on section 32 of the Limitation of Actions Act, the alternative road argument was irrelevant.
Whether the 1st to 3rd defendants are entitled to compensation, damages and injunction on their counterclaim
No - the counterclaim was dismissed as the defendants' rights over the road were extinguished before they acquired title
Compulsory acquisition is a state function under article 40 of the Constitution and Part VIII of the Land Act. The defendants inherited parcels already burdened by an overriding easement, had no rights over the road portion, and their claim for compensation for use of the road could not lie. Their injunction and damages claims therefore had no basis.
Legal principles established
#- Where a way has been enjoyed peaceably, openly and as of right and without interruption for twenty years, the right to such way is absolute and indefeasible under section 32 of the Limitation of Actions Act
- A prescriptive easement is an overriding interest over registered land and need not be noted on the register or in official survey records to be enforced
- The existence of an alternative road is immaterial to a claim for easement by prescription, unlike easement by necessity
- Compulsory acquisition of private land is a function of the state and cannot be invoked against private individuals exercising an accrued easement
Court orders
#- 1.A declaration that the plaintiffs and all other proprietors of the adjacent properties are entitled to a right of way across the properties known as LR Nos 1338/91, 1338/92 and 1338/93 using the road commonly known as 39 Quarry Road, on foot, motor vehicles and other conveyances at all times and for all purposes
- 2.A declaration that the 1st to 3rd defendants are not entitled to place, build or cause to be placed or built anything upon their properties so as to close, block up or obstruct the road commonly known as 39 Quarry Road
- 3.An injunction restraining the 1st to 3rd defendants from placing or allowing to be placed on 39 Quarry Road anything restricting, preventing or otherwise interfering with the reasonable enjoyment of the safe way by the plaintiffs and all other proprietors of adjacent properties
- 4.An order directed at the 4th defendant to delineate the disputed road in respect of LR Nos 1338/91, 1338/92 and 1338/93 and to amend deed plan Numbers 268859, 268857 and 268858 so as to indicate the road already on the said properties, being part of 39 Quarry Road traversing from Athi River Bridge on the Nairobi-Mombasa Road, running parallel to the northern boundary of the 1st to 3rd defendants' properties
- 5.No order as to costs
- Jurisdiction invoked
- Environment and Land Court Act, 2011 (first-instance land dispute; easement claim under section 32 of the Limitation of Actions Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maingey (Suing on His Own Behalf and on Behalf of the Fransiscan of Our Lady of Good Counsel Sisters Registered Trustees, David Masika, Evergreen Crops Limited, Waridi Limited, Daniel Mutisya Ndonye and Valley Brook Capital Limited) v Hillman & 3 others (Environment and Land Case 113 of 2015) [2025] KEELC 685 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/685/eng@2025-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.