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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiffs have acquired an absolute and indefeasible easement by prescription, being the right of way, access and use of the road traversing parcels LR Nos 1338/91, 1338/92 and 1338/93 (39 Quarry Road), by demonstrating that they have enjoyed the same peaceably, openly and as of right for an uninterrupted period of 20 years
- 2.Whether the 4th defendant should rectify/amend the deed plans for the 1st to 3rd defendants' parcels to reflect the disputed road
- 3.Whether the plaintiffs are entitled to damages
- 4.Whether the 1st to 3rd defendants are entitled to compensation for compulsory acquisition/encroachment, loss of income, mesne profits and a permanent injunction as sought in their counterclaim
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act, 2011 (first-instance land dispute; easement claim under section 32 of the Limitation of Actions Act)
Relief refused
#Plaintiffs' claim for damages
Damages were not pleaded with basis, nature or purpose and were not strictly proved
Rectification of deed plans in the exact terms sought (reflecting the approved subdivision plan of April 19, 2006)
The dotted line in the subdivision plan lacked dimensions and was not capable of execution; the court instead granted the easement in the dimensions of the road as it exists on the ground
1st to 3rd defendants' counterclaim: damages for encroachment and compulsory acquisition (Kshs 25,000,000)
Compulsory acquisition is a preserve of the state; the defendants' rights over the road were extinguished by the accrued prescriptive easement before they obtained title
1st to 3rd defendants' counterclaim: loss of income (Kshs 379,922,400), mesne profits and permanent injunction
The counterclaim had no basis; the defendants failed to prove entitlement
Costs
No order as to costs - 'As the parties in this case are related and or are neighbours, I make no order as to costs.'
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.
A declaration is hereby made that the plaintifis 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
An order is hereby 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 the deed plan Numbers 268859, 268857 and 268858 so as to indicate the road which is already on the said three properties
As the parties in this case are related and or are neighbours, I make no order as to costs.
Therefore, where there exists an easement in the nature of a right of way over a person's land, despite having not been noted on the register, the same is an overriding interest over which the registered land is subject to.
Where an owner of one parcel of land uses without possessing, another person's land peaceably and openly as of right, continuously and without interruption for a period of 20 years, a prescriptive easement arises.
In the result, I find and hold that the 1st to 3rd defendants have failed to prove entitlement to their counterclaim. I therefore dismiss the 1st to 3rd defendants' counterclaim.
Issues in the judgment
#The judgment refers inconsistently to the date of the court's site visit
Internal inconsistency on the site visit date
Judgment states parcel was subdivided in 2010 but the plaint says subdivision plan was submitted in 2006; also states 'the easement having crystalized' while the plaintiffs had used the road 'for over 45 years' as at 2015
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.