QUESTION 1

Discuss the nature of the rights that Kipchoge has acquired over Eliud’s land through long use .
What are the essential elements of this right and how is it created ? Distinguish between
easements and profits using the scenarios involving Kipchoge ,Eliud and Chebet. To illustrate
your point .

EASEMENTS .
This are legal rights that allow a person or entity to use another person’s land for a specific
purpose without owning it.
Section 2 of the land act 2012 ;Defines easements as non-possessory intrest in another’s land
that allows the holder to use the land or to restrict the proprietor’s use to a particular extent
and shall not include a profit .
Section 136 of land reg. act ; for easement to exist ,there must be dominant land also known
as benefiting land and servient land also known as burdened land .

TYPES OF EASEMENTS
1.1 IMPLIED EASEMENTS
This are easements that arise by implication from circumstances of prior use of the land
even if not formally documented .
For example ,imagine a property owner owns a large piece of land with a driveway leading
to the main road .The owner then sells a part of the land to another person ,but the only
way for the new owner to access the road is to use the existing drive way. if there was a
clear and continuous use of the drive way before the sale the court , may recognize an
implied easement by prior use allowing the new owner to continue using it .

1.2 EXPRESS EASEMENTS

This are easements that are explicitly created through a written agreement or formal
instrument eg; deed or contract between the property owner and the beneficiary.
For example: a home owner owns a piece of land that does not have direct access to a
public road. To solve this the sign a written agreement with their neighbor granting them
the right to use a specific portion of the neighbor’s drive way to reach the main road this
agreement is recorded in the property deed making it a legally binding express easement.
 1.3 PRESCRIPTIVE EASEMENTS .
This are easement that are acquired through long , contnouds and uninterrupted use of
another persons and without permission provided the use is open .
For example ; The question regarding kipchoge’s continuous use of Eliud’s land falls under
prescriptive easements because it meets the essential legal criteria for acquiring an
easement through long term use .

1.3 UTILITY EASEMENTS .

This type of easements grants utilty companies or gov. entities the right to install access and
maintain infrustrure on private or public property.
For example ;KPLC installs electricity poles and power lines across private land to supply
electricity to nearby homes and businesses

ESSENTIAL ELEMENTS OF AN EASEMENT .

For an easement to be legally recognized it must meet the following essential elements ;

[Link] must be two distinctive parties (dominant and servient tenements .)

The dominant tenement benefits from the easements eg; a land owner using a neighbor’s road for
access.
The servient tenement bears the burden of the easement eg ; the land over which the road passes .
For example : Kipchoge’s land ( dominant) relies on Eliud’s land (servient) for road access .

[Link] easement must benefit the dominant tenement .

The right must provide a direct benefit to the dominant land not just personal convenience.
EXAMPLE : IF kipchoge’s land has no other easy access the path across Eliud’s land is a necessary benefit
.

3The easement must be right of another person’s land .

The dominant land owner cannot have an easement over their own land .It must involve two different
owners .

[Link] and uninterrupted use.

Kipchoge’s use must have been uninterrupted and continuous for a sufficient period typically not less
than 20 years under common law.
RIGHTS FOR EASEMENT .

! . Continuous use of land.

Kipchoge and his family have clearly used the path openly and continuously for many years .This means
that Eliud was aware that Kipchoge and his family were using the land .

[Link] use without explicit permission .

Although Eliud never explicitly allowed this use ,he also never objected .This lack of objection is treated
as tactic acceptance which when coupled with long term use satisfies the adverse requirement meaning
the use is not based on permission .

3. statutory period .
Under Kenyan law if someone uses another persons land in this manner for a period of twenty years
they can acquire a prescriptive easement .Assuming Kipchoge’s use meets this duration his rights
becomes legally recognized .

4. Effect on the land .

Once established this easement runs with the land .This means the right to use the of the path Is
attached to Kipchoge’s property (the dominant tenement ) and remains even if the property is sold .

PROCESS OF CREATION OF AN EASEMENT .

The process of creating an easement depends on the type of easement being established. Below is a
step-by-step guide based on the Land Registration Act, 2012 (Section 98) and general property law
principles in Kenya.

1. By Express Grant (Agreement Between Parties)

This is the most formal way of creating an easement and involves the following steps:

Step 1: Agreement Between Landowners

 The dominant landowner (who benefits from the easement) and the servient landowner (who
provides the easement) enter into a written agreement.
 The agreement specifies the type of easement, its location, and any conditions or restrictions.

Step 2: Preparation of a Legal Document

 A legal document (easement deed) is prepared by a lawyer or land surveyor.

 The deed includes a clear description of the land, the purpose of the easement, and the duration
(if any).
Step 3: Registration with the Land Registrar

The easement must be registered with the Registrar of Lands under Section 98 of the Land Registration
Act, 2012.

Once registered, the easement becomes legally enforceable and binds future owners of both properties.

2. By Prescription (Long-Term Use Without Objection)

This applies when someone has used land openly, continuously, and without permission for 20 years or
more.

Step 1: Proving Continuous Use

Step 2: Filing an Application in Court

 The landowner applies to the Environment and Land Court (ELC) for a declaration of a
prescriptive easement.
 The court will consider evidence, such as witness testimonies, maps, and historical usage
records.

Step 3: Court Orders Registration

 If the court confirms the easement exists, it orders the Land Registrar to officially record the
easement in the land records.
 Once registered, the easement is permanent and binds future owners.
3. By Necessity (Landlocked Property)

If land is landlocked and has no reasonable access, the law allows for an easement of necessity.

Step 1: Proving Necessity

The landowner must show that there is no alternative access to the property except through the
neighboring land.

Step 2: Negotiation or Court Application

 The landowner can negotiate with the servient landowner to create an easement.
 If the servient landowner refuses, the dominant landowner can apply to the court for an
easement of necessity.

Step 3: Court Orders Registration

If granted, the court orders the Land Registrar to register the easement, making it legally binding.

4. By Statute (Public Interest Easements)

Government agencies or utility companies can create easements for public services like roads,
electricity, water, and sewer lines.

Step 1: Government Notice or Order

The county or national government declares a need for a utility easement.

Step 2: Notification and Compensation

Affected landowners are notified and may be entitled to compensation if the easement affects land use

Step 3: Registration

The easement is formally recorded in the land registry and affects future owners.

5. By Implied Grant (Automatically Created When Land is Subdivided)

 If a landowner sells part of their land but continues using a path, road, or utility line through the
sold portion, an easement may be implied.

Step 1: Proof of Prior Use

 The dominant landowner must show that the easement existed before the land was divided and
is still needed.

Step 2: Registration

 If the parties agree, they register the easement in the land registry.
 If disputed, a court can declare it an implied easement and order registration.

JUDICIAL PRECEDENCE.

Albert & 5 others v Mugwe & another (Environment & Land Case E001 of 2021) [2022] KEELC 15531
(KLR) (20 December 2022) (Judgment)

n the case of Albert & 5 others v. Mugwe & another (Environment & Land Case E001 of 2021) [2022]
KEELC 15531 (KLR) (20 December 2022), the plaintiffs sought the court's intervention to establish an
easement of access over the defendants' land, designated as Loc 8/Kaganda/43. The plaintiffs claimed
that they had utilized a specific portion of this land, measuring 58 meters in length and 6 meters in
width, as an access road to their respective properties for over 20 years.

In this case, the court examined whether the plaintiffs' prolonged use of the access road over the
defendants' land met the legal threshold for establishing an easement by prescription. The court's
analysis focused on the duration and nature of the plaintiffs' use, considering whether it was
continuous, open, and without interruption for the requisite 20-year period.

The court's decision in this matter would have been based on the evidence presented regarding the
plaintiffs' use of the access road and whether it satisfied the legal requirements for an easement by
prescription under Kenyan law.
Termination of easements can occur in several ways, depending on the nature of the easement
and the applicable legal principles. Here are the primary ways an easement may be terminated:

1. Expiration

 If the easement was granted for a fixed period, it terminates automatically when that
period ends.

2. Merger

 If the owner of the dominant estate (the property benefiting from the easement) acquires
the servient estate (the property burdened by the easement), the easement is terminated as
there is no longer a separate entity to benefit from or be burdened by it.

3. Release

 The holder of the easement can voluntarily relinquish it by executing a written release in
favor of the servient estate owner.

4. Abandonment

 If the easement holder takes actions that clearly indicate an intention to permanently
abandon the easement (e.g., non-use for an extended period combined with acts
inconsistent with future use), courts may declare it terminated.

5. Prescription (Adverse Possession)

 If the servient estate owner takes actions to prevent the use of the easement continuously
and openly for the statutory period, the easement may be extinguished.

6. Estoppel

 If the easement holder leads the servient estate owner to believe that the easement will no
longer be used and the servient estate owner relies on this to their detriment, a court may
terminate the easement based on equitable estoppel.

7. Condemnation (Eminent Domain)

 If the government or another entity with eminent domain authority takes the servient
estate for public use, it may result in termination of the easement, sometimes with
compensation .
PROFITS (Profit a’ prendre)

Profits is a right that allows an individual to enter another land and extract natural resources such as
grazing livestock ,harvesting crops or collecting fire wood .

NATURE OF PROFITS .
A Profit can arise in three ways :

EXPRESS GRANT: This is a formal agreement that arises the Landowner allowing them to extract the
natural resources from the land.

PRESCRIPTION :This is acquired through uninterrupted and open use of land for a specific time as similar
to easements.
NESSESITY; Implied when the land has historical dependence on the land . for example :the maasai have
a historical dependence on the land for grazing .

ANALYSIS.
In the given case : chebet’s right to graze cattle and collect fire wood could qualify as a prescriptive
profit .If the right has been exercised for a period of atleast 12 years as per the limitation of action act
(cap22).

EFFECT OF COMPULSARY ACQUISITION ON PROFIT .

The county gov,s commpulsary acquisition of kipchoge’s land affects both kichoge and chebet.

Under article 40 of the Kenyan constitution and the land act parties whose interest are affected by
compulsory acquisition must receive fair compensation .

If chebet’s grazing rights amount to a recognized profit she may claim compensation for loss of access .

OWNERSHIP AND TRANSFER OF PROFITS .

[Link] profits : These are profits that are tied to the the land ownership and benefits the
dominant landowner .The profit cannot be sold separately from the land .

2. In gross profits ; these profits are independent from the land ownership and cannot be transferred or
sold to another party .

TRANSFER OF PROFITS
By sale ;in the case of gross profits the holder can sell or assign the right to another party provided it
complies with the land registration requirements .

By lease or license ; a land owner may lease or license the right to extract resources temporary.
BY prescription ; profit holder who continuously exercise the right for the statutory period may claim
legal ownership .
By inheritance ; profit and gross can be inherited if they are expressly included I the decease estate .
In chebet’s case if her grazing and fire wood collection rights are considered as an in gross profit she
may have the ability to transfer or lease this right to another person .however if the right is
appurtenant to her land it can only be transferred a long side her land .

DIFFERENCES BETWEEN PROFITS AND EASEMENTS .

PURPOSE ; in profit extraction of resources is for personal use or profit while in easements use of land
for a specific non possessory purpose

Possession ; in profits it allows entry and removal of resources while in easements it grants use but does
not allow possession .

Transfer :in profit it can be sold or transferred to another person separately from the land while in
easements they are usually tied to the land ownership (appurtenant ) but can sometimes be
independent.

Types : in profit exclusively ;only one person or entity has the right ,non exlucively : multiple parties can
share the right .while in easements appurtenant attatched to a dominant estate , in gross belongs to a
person or entity not land ownership.

Creation ; express agreement ,written contract . prescription ,long term continuos un authorized use ,
nesessity ,required to access essential resources ;custom arises from historical use . while in easement
we have express grant written agreement or deed .Implied easements applies when land is divided .

TERMINATION.
1 .Resources depletion , if the resources run out such as the grass is depleted .
2. Abandonment ; IF not used for an extended period of time .
3. Merger ; if the land owner and profit holder become the same person .
4. Revocation : if terms are violated the profit can be terminated .