Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party) (Environment and Land Petition E033 of 2021) [2026] KEELC 482 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a registered right of way on Karen land remains valid, binding new owners, and paving it only needs NEMA's licence.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and exhaustion of administrative remedies
The National Environment Tribunal's jurisdiction under Section 129(1) EMCA is appellate and limited; the Petition is not an appeal against an EIA licence and no appealable decision authorised the 2021 works, so exhaustion does not oust the Court's jurisdiction.
The Tribunal hears appeals against grants, refusals, variations or revocations of licences and restoration orders. The gravamen of the Petition is the September 2021 entry, tree felling and works on the servient land, with reliefs (injunction, restoration, cancellation of easement, compensation) that the Tribunal cannot grant. Since no decision of the Authority covered the impugned works, there is no appealable decision, and the doctrine of exhaustion does not apply.
Existence, validity and dimensions of the easement
The easement was validly created as a condition of the 1970/1971 subdivision, was noted on the Grant IR No. 26024, binds successors, and measures approximately 12 metres by 380 metres, with the Respondent electing to use a 9-metre corridor; the 3-metre assertion failed for want of evidence.
The easement pre-dated the Land Act and Land Registration Act 2012 and is preserved under Section 107(1) of the Land Registration Act. It was created under the Registered Titles Act regime and noted on title. The Petitioner produced no survey plan or expert evidence for 3 metres, and its witness conceded the dimensions were unknown. DW2's survey evidence and DW3's records, unrebutted by any counter-expert report, established 12 metres by 380 metres, with compensation effected through amalgamation of LR No. 5830/9.
Whether intensified use and alternative access extinguish the easement
The change of user and increased traffic constitute a permissible intensification of the residential access for which the easement was created; the existence of Forest Lane Road does not render the easement redundant.
The dominant land remains residential, and the easement continues to serve vehicular and pedestrian access to dwellings, albeit at increased frequency. Absent a written agreement, it is immaterial that the dominant land is no longer landlocked or that the number of households served increased. The easement has not been extinguished by agreement, statute or operation of law.
Lawfulness of entry, tree felling and upgrading works
Entry and access-related works within the easement were not trespass; the dominant owner may maintain and repair the way at its own expense, but paving the 9-metre corridor requires a NEMA EIA licence, and tree felling was lawful under the County Government permit.
At common law the dominant owner may enter to render the right of way effective, per Carter v Cole. However, upgrading (laying cabros) is a low-risk project under the Second Schedule to EMCA requiring a Summary Project Report and licence. Tree felling within the corridor was covered by the County permit notwithstanding that it referred to LR No. 6939/2. The Respondent needs no permission from the Petitioner to pave and use the road once licensed.
Legal principles established
#- An easement validly created runs with the land; its benefit passes with the dominant tenement and its burden with the servient tenement, binding successors in title.
- The dominant owner is entitled, at his own expense, to enter servient land to maintain or repair a right of way, provided the works are reasonably necessary and carried out reasonably, subject to statutory and environmental compliance.
- Entry within a valid easement does not constitute trespass; an easement qualifies the servient owner's exclusive possession.
- Paving a short local/access road is a low-risk project under EMCA requiring a Summary Project Report and licence from NEMA before upgrading works are undertaken.
- The exhaustion doctrine does not apply where there is no appealable decision under Section 129(1) of EMCA and the statutory forum cannot grant an effective remedy.
- An increase in traffic from residential intensification does not, without more, amount to an excessive burden on the servient land; it is a permissible intensification, not a change in essential character.
Court orders
#- 1.The Petitioner's Petition dated 13th September 2021 is dismissed
- 2.Costs of the Petition to the Respondent
- Jurisdiction invoked
- Constitution of Kenya, Articles 40, 42, 47, 69 and 70; Environment and Land Court jurisdiction over environmental and land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party) (Environment and Land Petition E033 of 2021) [2026] KEELC 482 (KLR)", Case Analysis (2026). Petition dated 13th September 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/482/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.