Mwangi & 3 others v Ngarachu (Sued as the Legal Representative of the Estate of Ngarachu Chege - Deceased) (Civil Appeal 328 of 2019) [2025] KECA 555 (KLR) (21 March 2025) (Judgment)

Facts

The appellants claim an easement over land measuring 58 meters by 3 meters, which they claim was excised by the respondent's husband in his lifetime. The respondent denies the claim and states that the appellants' parcels have access to the main road through the road below their land.

Issues

1. Whether the appellants are entitled to an easement over the land parcel No Loc.8/Kaganda/73
2. Whether the appellants are entitled to a declaration that Ngarachu Chege held the property subject of the easement in trust for the appellants
3. Whether the deceased's title in respect of the said portion of 58m long by 3m wide in Loc.8/Kaganda/73 is extinguished under section 17 of the Limitations of Actions Act
4. Whether the applicants are entitled to be registered as the owners of the easement measuring 58m long by 3m wide over land parcel No Loc.8/Kaganda/73
5. Whether the costs of this suit should be awarded to the applicants

Reasoning

The Court of Appeal held that a claim of easement is a claim on use of land rather than possession or ownership, and that an easement on one-hand benefits and on the other burdens. The Court also held that if the land were to be registered in their names, it would amount to a total ouster of the owner of the servient land, which is against the very nature of a right to an easement.

Outcome

Appeal dismissed

Authorities cited