Buying a registered parcel did not give its new owner an unrestricted right to close an established access road. In a judgment delivered on 20 September 2024, the Court of Appeal upheld the hotel's prescriptive easement over neighbouring land and left the mandatory injunction protecting that access in place. The appeal was dismissed with costs to the hotel company. (Paragraphs 32-42; closing.)
The wall and the competing accounts
Equator Inn Limited, trading as Tsavo Inn Hotel, claimed that customers had used the disputed route to reach its premises at Mtito Andei for decades. Its complaint was that National Oil Corporation of Kenya built a wall obstructing that access in 2015. It sought declarations and injunctions, including removal of the obstruction. (Paragraphs 1-3.)
National Oil admitted building a boundary wall but disputed the asserted access right. It said the hotel had another route from the highway and was directing customers across its land without consent. It also challenged the trial court's treatment of ownership, the applicable easement principles and the mandatory injunction. Those submissions must be distinguished from the appellate court's eventual findings. (Paragraphs 4 and 6-13.)
Earlier litigation did not answer this access claim
National Oil argued that earlier Machakos proceedings made the suit res judicata, meaning the issues had already been finally determined. The judges examined what those proceedings actually concerned. One involved termination of a petrol-station dealership; the other was a landlord-and-tenant dispute before the Business Premises Rent Tribunal. They rejected the argument that those decisions barred this easement claim. (Paragraphs 22-26.)
The distinction was substantive, not merely a change in a case's label. The court considered the issues decided and the earlier forum's jurisdiction, rather than treating any previous litigation in the same commercial setting as a complete answer.
What the long use had to establish
An easement is a right benefiting one property through a defined use of another. The judgment distinguished the benefiting land from the land bearing the burden. Such a right of access is not the same thing as ownership of the neighbour's parcel. (Paragraphs 27-29.)
Under section 32 of the Limitation of Actions Act as quoted by the court, the relevant enjoyment must be peaceful, open, as of right and uninterrupted for twenty years. The qualifying period must end within the two years immediately preceding the action contesting the claim. The judges also stressed that the evidential presumption is rebuttable: where facts allow two explanations, the claimant still bears the burden of establishing use as of right. (Paragraphs 28-31.)
Here, the court accepted the evidence of more than 43 years of access for the hotel and its customers. It referred to the established entrance, marked by a tusk-like structure, and the undisputed construction of the obstructing wall. Contrary to National Oil's alternative-access argument, the court found that the hotel's land did not border the main road and accepted the disputed route as its access. These were findings on this record, not permission to infer an easement from any frequently used path. (Paragraphs 32 and 35-38.)
Why the change of owner did not restart the clock
National Oil had acquired the neighbouring property in September 2010. The court found that the relevant twenty years had already elapsed by then. Once validly created, the easement's benefit and burden passed with the respective properties; a later purchase did not remove it. (Paragraphs 35-36.)
The judges also relied on the overriding-interest framework in section 28 of the Land Registration Act as reproduced in the judgment. Their reasoning explains why the absence of a recorded entry cannot, by itself, answer whether a proved access right binds a proprietor. The court treated the ELC suit as the means of formalising the hotel's claim. (Paragraphs 33-34 and 38.)
The injunction and the limits of the result
The court found no basis to disturb the trial judge's discretion. It regarded the mandatory injunction as restoring the access position that existed before the wall, following the finding of an established easement. It then dismissed the appeal with costs to the respondent, Equator Inn. This was an appeal from a trial judgment and decree, not merely a temporary stay application. (Caption; paragraphs 39-42.)
For another property file, ask what route is claimed, what evidence shows its use and duration, whether permission or interruption changes that history, and what orders actually govern it. A purchase document alone does not resolve those factual questions.
The judgment contains inconsistent parcel references, including in paragraphs 2 and 38; this account does not reconcile them or verify current boundaries. Its acquisition and use dates also vary; the periods above report the court's findings rather than a reconstructed timeline. Later proceedings, implementation and present access have not been researched.
Primary source (official Judiciary collection): Court of Appeal, Civil Appeal No. 161 of 2019, judgment delivered 20 September 2024, paragraphs 1-42.
How ArdhiScore works explains its approach to a dated evidence record. Such a record does not guarantee title or identification of every access right, and cannot replace appropriate document checks and legal advice.