Njau & another v Nderitu
The bottom line
#Kenya's Court of Appeal confirmed that ongoing trespass on land is never too late to sue over, but landowners must still prove the trespass actually happened.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claim was time barred
- 2.Whether there exists an easement between plots numbers 341, 340 and 344
Key legal issues
#Whether the trespass claim was time barred under sections 4(2) and 7 of the Limitation of Actions Act
The trial judge erred: possession of land, if unauthorised, is a continuing trespass giving a fresh cause of action each day, so the claim was not time barred.
Relying on Salmond on Torts, Clerk & Lindsell, Konskier v Goodman and this Court's decision in Muthiora, the Court held that continued unauthorised occupation is a continuing tort; each continuance is a fresh trespass with a new cause of action arising daily, so limitation does not bar the claim while the trespass continues.
Whether an easement existed over plots 340, 341 and 344
No easement existed: the access road was reserved in the letters of allotment for the benefit of the public, and a public right of way is not an easement; nor did the appellants prove trespass.
DW2 confirmed the right to provide access roads was reserved in the allotment letters. Applying Ngambo Estate, a public right of way is a dedication to the public, distinct from an easement, and cannot be acquired by prescription. The trial judge's finding of an equitable easement was thus wrong in principle, but the appeal still failed because trespass was not proved.
Whether the trial court's dismissal of the suit should stand
Yes. Although the limitation finding was wrong, the appellants failed to prove trespass, so the dismissal could not be faulted.
The Court re-appraised the evidence, finding PW3's evidence inconclusive and DW2's evidence confirming the Government-created access road. Since the appellants did not prove unauthorised intrusion by the respondent, the ultimate dismissal of the suit was upheld despite the error on limitation.
Legal principles established
#- Continuous trespass gives rise to a fresh cause of action from day to day and is not time barred under section 4(2) of the Limitation of Actions Act.
- A right of way reserved in letters of allotment for the benefit of the public is a public right of way, not an easement, and cannot be acquired as a prescriptive easement.
- An appellate court defers to trial court findings of fact unless clearly erroneous, while conclusions of law receive higher scrutiny.
Court orders
#- 1.Appeal dismissed
- 2.No order as to the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- ELC Court at Nyahururu
- ELC Suit No. 77 of 2017
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (Rule 31(1)(a) invoked); appeal against ELC judgment
Relief refused
#Allowance of the appeal and setting aside of the trial court's dismissal of the trespass/eviction claim
Appellants failed to prove that the respondent trespassed onto their plots; the access road was reserved in the letters of allotment for the public and did not amount to an easement
Costs
Appeal dismissed with no order as to the costs of the appeal ('we make no order as to the costs of this appeal'); the trial court had dismissed the suit with costs to the respondent, which was not disturbed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In this case, since the alleged possession was a continuous trespass, the learned Judge erred in finding that the cause of action was time barred.
the provision for access road, having been reserved for the benefit of the public, it did not amount to an easement.
An appellate court will only overturn a conclusion of fact if the trier of facts decision was clearly erroneous. This is to be contrasted with a conclusion of law, which will receive higher scrutiny.
In the result, this appeal fails and is dismissed but in light of our finding on limitation, we make no order as to the costs of this appeal.
It is so ordered.
Issues in the judgment
#Judgment inconsistently labels the Land Adjudication officer's witness as both PW2 and DW2
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njau & another v Nderitu", Case Analysis (2025). Civil Appeal E042 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2206/eng@2025-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.