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ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 685 (KLR)

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)

Environment and Land Court
19 February 2025
27,269 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~109 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a plaint dated April 9, 2015, Thomas Mumo Maingey, on his own behalf and on behalf of six other plaintiffs, sued the 1st to 3rd defendants (his siblings/brother-in-law) and the Director of Surveys (4th defendant), seeking declarations, an injunction and rectification of deed plans in respect of 39 Quarry Road, a road traversing the defendants' parcels LR Nos 1338/91, 1338/92 and 1338/93. The plaintiffs claimed an absolute and indefeasible prescriptive easement under section 32 of the Limitation of Actions Act, contending the road pre-existed the 1970 acquisition of Wattle Blossom Farm and had been used openly and uninterruptedly for over 45 years. The 1st to 3rd defendants denied the claim, asserting the road was private and not surveyed, and counterclaimed for Kshs 25 million in compulsory acquisition damages, Kshs 379,922,400 loss of income, mesne profits and a permanent injunction. The 4th defendant maintained there was no surveyed public road through the parcels. After viva voce evidence by five plaintiffs' witnesses, three defendants' witnesses and one 4th defendant witness, and a site visit, the court framed a single issue: whether the plaintiffs had acquired an absolute and indefeasible easement by prescription. Applying section 32 of the Limitation of Actions Act, section 28 of the Land Registration Act and the Land Act, the court found the road existed before 1970, was used openly, peaceably and as of right for over 20 years, and that the easement was an overriding interest not defeated by its omission from the deed plans. The court held the alternative-road and necessity arguments immaterial, rejected the compulsory acquisition claim as a state preserve, and dismissed the counterclaim. The plaintiffs' claim for damages failed for lack of strict proof. Judgment was entered for the plaintiffs with declarations, an injunction and an order to the 4th defendant to delineate the road and amend the deed plans; with no order as to costs given the parties' familial relationship.

Key legal issues

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01

Whether the plaintiffs acquired a prescriptive easement (right of way) over 39 Quarry Road under section 32 of the Limitation of Actions Act

Holding

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

Reasoning

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.

p. 43
02

Whether the road's omission from the deed plans and survey records defeats the claim

Holding

No - the question does not turn on survey records since an easement is an overriding interest not normally reflected in the register

Reasoning

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.

p. 40
03

Whether easement by necessity and the alleged alternative road affect the claim

Holding

The claim was pleaded solely as an easement by prescription; whether an alternative road exists is immaterial

Reasoning

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.

p. 42
04

Whether the 1st to 3rd defendants are entitled to compensation, damages and injunction on their counterclaim

Holding

No - the counterclaim was dismissed as the defendants' rights over the road were extinguished before they acquired title

Reasoning

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.

p. 44

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 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

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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, "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.