Over the years, patrons and workers of Tsavo Inn accessed the hotel through a path at the petrol station and all was well until 2015 when the State-owned oil dealer erected a wall, blocking the access to the hotel and the highway.
The matter ended up in court and in a recent decision, the Court of Appeal ruled in favour of Tsavo Inn stating that the hotel had a right of easement.
An easement is a real estate concept that defines a scenario where one party uses the property of another party for ease of access to a facility. It is akin to a right of way.
Boundary wall
In its case, Tsavo Inn sought an injunction restraining the Nock or its agents from constructing the wall in a bid to block the access road to the Nairobi-Mombasa highway.
The hotel also sought an order compelling the oil dealer to remove any obstruction to the said entrance.
Nock opposed the case, claiming that it was the hotel that was unlawfully interfering with its property by directing its customers to access the inn through its premises without its consent and in total disregard of the boundary.
The oil company maintained its property borders the Nairobi-Mombasa highway with clear road access to its property.
Nock admitted that it had built a boundary wall.
After hearing the case, Environment and Land Court Judge Charles Mbogo agreed with Tsavo Inn stating that by blocking the access road to the hotel, Nock acted unreasonably, in bad faith, and with the intention of destroying the business.
This was because there was no evidence that the easement interfered with the petrol station's business.
The judge held that it was undisputed that the hotel guests had enjoyed access to the property via the petrol station for over 20 years.
Right of way
Dissatisfied with the decision, Nock moved to the appellate court, faulting the judge on the right of easement over its property despite uncontroverted evidence that the hotel had alternative access to its property through the Nairobi-Mombasa highway.
Nock argued that there was no basis for the trial court to find that the hotel had the right to access the inn through its premises.
The oil dealer said it purchased the property in September 2010 and that the hotel owner had been a trespasser all along.
Tsavo Inn argued that its right of way had been created by prescription and that there is undisputed evidence that it had been enjoying the right of way through the property for over 43 years openly as of right and without interruption, even from previous owners.
In the judgment, judges Gatembu Kairu, Francis Tuiyott, and John Mativo noted that the hotel enjoyed the access road through Nock’s property and all was well.
“Thus the access was peaceful and openly as of right and was without interruption. Consequently, we affirm that the respondent’s right to easement on the appellant’s property is absolute and indefeasible and it was only through the suit before the ELC that the respondent could formalise its claim for easement,” said the judges.
The judges said there was undisputed evidence that the hotel had been accessing the Mombasa highway using the access road for more than 43 years.
The court added that there was unchallenged evidence that the hotel constructed an elephant-like tusk structure at the entrance to the said access road.
“Also uncontroverted is the respondent’s evidence that for the said period of 43 years, it has operated a hotel business on its land and its customers use the said access road,” added the court.
