Easements and Rights of Way in Kenya

Easements and rights of way come up constantly in Kenyan property disputes: a neighbour’s driveway crosses the edge of your parcel, or your only practical route to the main road runs across land someone else now owns. Clients often assume that a right used for years, without objection, simply becomes legally protected over time. Under Kenyan land law that assumption is wrong for an easement, though not for every kind of right of way. This article sets out how an easement is actually created under the Land Registration Act, what comes with it automatically, why long use alone creates nothing, and how the Act treats an ordinary right of way differently.

How an easement is actually created

Section 98 of the Land Registration Act, 2012 governs the creation of easements and analogous rights over registered land. An easement is granted by an instrument in the prescribed form, made by the owner or lessor of one parcel in favour of the owner or lessee of another, or it can be reserved by an owner or lessor when transferring or leasing land. The instrument has to specify the nature of the easement and any conditions or limitations on it, the term for which it is granted, the land burdened by it, and the land that benefits from it, and it must be accompanied by a plan sufficient to identify the land affected. This is a formal, registered act. There is no provision in the Act for an easement to spring into existence simply because an instrument was never drawn up.

Implied rights that come with a properly created easement

Section 98 does more than set out the paperwork; it also builds in certain rights automatically once an easement exists. Where a party wall is severed, section 98(4) implies cross-easements of support between the two resulting parcels, so neither owner has to negotiate that protection separately. Section 98(5) implies whatever ancillary rights are reasonably necessary for the full and reasonable enjoyment of an easement or an analogous right, which can matter in practice for things like access to inspect or maintain a drainage line that runs across a neighbouring parcel. Section 98(6) also allows the owners of the dominant and servient land to agree how the cost of exercising or maintaining an easement is to be shared, rather than leaving that question to be argued about later.

Why long use alone does not create an easement

Section 98(7) is the provision that most directly contradicts the common assumption clients bring in: no easement, and no right in the nature of an easement, can be acquired by any presumption of a grant arising from long and uninterrupted use. Kenyan statutory law does not recognise the doctrine of prescription for easements the way some other jurisdictions do. A neighbour who has crossed your land daily for twenty years without ever being granted a registered easement has not, on that basis alone, acquired one. That does not mean the arrangement is risk free for the landowner either; a long-standing informal crossing can still complicate a sale or a boundary dispute even without amounting to a legal easement, which is exactly why formalising an arrangement in writing, even a modest one, is worth doing rather than relying on it continuing by habit.

Rights of way for persons and stock: a separate savings clause

Section 98(8) then carves out an important exception to the general scheme. Nothing in section 98 prevents the lawful use of a right of way for persons and for stock that has already been acquired, and that right of way is deemed to be property. This is a narrower and more specific protection than a general easement: it applies to the movement of people and livestock, not to every conceivable use a neighbour might make of a track across someone else’s land, and it protects a right that was lawfully acquired rather than creating a new mechanism for acquiring one going forward. In practice this provision most often matters in rural and agricultural contexts, where a stock route or footpath has genuine legal footing that a general driveway or access arrangement between two urban plot owners would not have.

Enforcing easements and rights of way, and bringing them to an end

Easements and rights of way both need to be enforceable to be worth anything. Section 100 confirms who can actually enforce an easement once it exists: the owner of the dominant land, successors in title, and, depending on the nature of the right, lessees and lenders holding a charge over the dominant land, all of whom may take out proceedings in their own name to enforce it. An easement does not last forever by default either. Section 99 allows the person occupying the dominant land to cancel an easement they hold, with the cancellation taking effect once it is recorded in the register, and it also allows the Registrar, on application by a person occupying the servient land, to cancel an easement where its intended term has expired or the event on which it was meant to terminate has occurred. Where a lessee or a lender holds the benefit of the easement, their consent is required before any cancellation can proceed, which protects a bank’s security interest from being extinguished by an agreement between the two landowners alone.