Equator Inn Limited, operating as Tsavo Inn Hotel in Mtito Andei, purchased land in 1970 to establish the hotel.
Later, the owner sold part of the land to oil trader Caltex, who established a gas station along the highway.
Caltex would later sell the plot of land to TotalEnergies before the latter sold the same plot of land to the National Oil Company (Nock) sometime in 2010.
Over the years, Tsavo Inn patrons and workers accessed the hotel via a road at the petrol station, and all was well until 2015 when the state-owned oil trader erected a wall, blocking access to the hotel and the highway.
The matter ended up in court, and in a recent decision, the Court of Appeal ruled in favor of Tsavo Inn, stating that the hotel had an easement.
An easement is a real estate concept that defines a scenario in which one party uses another party’s property for easy access to a facility. It’s closer to the right of way.
Border wall
In its case, Tsavo Inn sought an injunction preventing Nock or its agents from building the wall in an attempt to block the road to the Nairobi-Mombasa Expressway.
The hotel also requested the issuance of an order requiring the oil trader to remove any obstacle in front of the aforementioned entrance.
Nock disputed the case, claiming that it was the hotel that was illegally interfering with his property by directing his customers to access the inn through his premises without his consent and in complete disregard of boundaries.
The oil company maintained its property bordering the Nairobi-Mombasa highway with easy access to its properties.
Nok admitted that she built a border wall.
After hearing the case, Environment and Lands Court Judge Charles Mbogo agreed with Tsavo Inn stating that by closing the road leading to the hotel, Nock acted unreasonably, in bad faith, and with the intent to destroy the business.
This is because there is no evidence that the easement conflicts with the operation of the gas station.
The judge found it undisputed that hotel guests had enjoyed access to the property via the gas station for more than 20 years.
Right of way
Dissatisfied with the decision, Nok moved to the Court of Appeal, faulting the judge over the easement on his property despite indisputable evidence that the hotel had alternative access to its property via the Nairobi-Mombasa Expressway.
Nok argued that there was no basis for the trial court to find that the hotel had a right to access the inn through its premises.
The oil trader said he bought the property in September 2010 and that the hotel owner had been a trespasser the whole time.
Tsavo Inn argued that its right of way was created by prescription and that there was undisputed evidence that it had had the right of way over the property for over 43 years openly as of right and without interruption, even from the previous owners.
In the ruling, Justices Gathembo Kairu, Francis Tuyot and John Mativo noted that the hotel had access road through the Nok property and everything was fine.
“The access was thus peaceful, public as a matter of right and without interruption. We therefore affirm that the respondent’s right to easement over the appellant’s property is absolute and irrevocable, and it was only through the suit filed before the Civil Law Commission that the respondent was able to formalize his claim to the easement.” .
The judges said there was indisputable evidence that the hotel had been accessing the Mombasa Expressway using the access road for more than 43 years.
The court added that there is irrefutable evidence that the hotel built a structure resembling an elephant’s tusk at the entrance to the aforementioned access road.
The court added: “The evidence adduced by the defendant is also undisputed that during the aforementioned period of 43 years he operated a hotel project on his land and that his clients used the said access road.”