2. DEFINITION OF EASEMENTS
The Land Act under section 2 defines easement as a non-
possessory interest in another’s land that allows the holder to
use the land to a particular extent, to require the proprietor to
undertake an act relating to the land or to restrict the
proprietor’s use to a particular extend, and shall not include
a profit.
easements only exists as long as the land or lease from which
it originates exists, or as permitted by other applicable laws
3. There must be two pieces of land
1. Dominant land.
2. Servient land.
4. DOMINANT LAND
It’s the land that benefits from the easement.
Te easement is considered to benefit the dominant land and
burden the servient land.
SERVIENT LAND
The land belonging to the person who grants the easement.
5. RIGHTS CAPABLE OF BEING
CREATED BY AN EASEMENT
Easements can grant certain rights over the
servient land, including the ability to perform
actions on, under, or above the land, or to
prevent certain actions from taking place.
They also include the right to require the owner
of the servient land to perform certain actions
on the land, or the right to graze livestock on
the servient land
Easement do not grant the right to take or
remove anything from the servient land nor do
they provide exclusive possession of any land
6. CONTINUATION
Unless specifically created for a fixed
period, event , or upon the death of
certain individuals, easements burden
the servient land and remain in effect for
the same duration as the land or lease
held by the grantor.
7. NATURE OF
EASEMENTS
• The Land Act under section 138 provides for
nature of easement.
• Easement are usually positive, giving the
dominant owner the right to use servient land.
• However, they can be negative preventing
something being done on the servient land so
giving the dominant owner the right to receive
something from the servient land.
8. CHARACTERISTICS
There must be a dominant and a servient
tenement. This is to mean that there is the land
that is benefiting from the easement and the
land that is burdened by it.
The dominant owner and the servient owner
must be different.
The easement must accommodate the dominant
tenement. This means that it must be connected
with its enjoyment and benefits.
9. Cont’d
The easement can be created by grant by
the owner of the land or by statute.
Where the easement is by statute, it
cannot be revoked at the will of the
grantor
Easements are non-possessory in nature
It binds successors of the land
10. Cont’d
Easements are usually positive to allow the
dominant land to do something. However, they
can be negative, in that, it estops the owner of
the servient land from doing something in his
own land for the benefit of the dominant land.
The easements may include:
The right of way
The right to light, air, water and support
Rights to graze, with the consent of the grantor.
11. CREATION OF EASEMENTS
Creation by statute;
express grant or reservation;
implied grant or reservation;
prescription.
12. CREATION BY EXPRESS
RESERVATION
Provided for under section 98 of the LRA
owner of land has the authority to grant an
easement to another land owner or lessee either
over the entire land or a portion of it, through a
legally prescribed document.
The grant shall be made using form LRA 80
and it must be recorded by the register.
The instrument creating the easement must
specify its nature, any conditions or
restrictions, the duration, the burdened land,
and the land benefitting from the easement.
13. continuation
When transferring, assigning or leasing land, the
owner or lessor can grant an easement benefitting
the transferred land over the retained land or
reserve an easement for the benefit of the land they
retain.
Every grant of an easement includes ancillary rights
necessary for the complete and effective enjoyment
of the easement.
A grant of easement may include an agreement
between the owners of the dominant and servient
lands obligating them to contribute to the costs
associated with constructing, maintaining or
repairing the infrastructure related to the easements
14. continuation
Easements and rights in the nature of
easements cannot be acquired solely
through long and uninterrupted use.
15. IMPLIED GRANT OR RESERVATION
An implied easement is an easement
that comes into existence upon a
disposition of land without having been
expressly created by the parties to that
disposition.
16. PRESCRIPTION
The Limitation of Actions Act under
sections 32, 37 and 38 provides that 20
years use of another’s Land grants an
easement to the user.
The possession should be peaceful,
open, rightful and uninterrupted.
The action claiming the rights should be
instituted before the HC within 2 years
of cessation of the user
18. Entry order
Right of way is provided for under section 139 of the
Land Act No. 6 of 2012.
In Section 139 : an owner of land includes an owner
under a lease, a lessor and lessee; and neighboring land
means any land in respect of which an order is sought
under this section, whether or not it adjoins the land
occupied by the applicant for an entry order.
An owner of any dominant land may apply to a court on
the prescribed form for an order known as an entry order
authorizing them entry order over any servient land for
the purpose of erecting, repairing, adding to, painting or
demolishing the whole of part of any structure on the
dominant land or doing any other necessary or desirable
thing on that land ( Section 139 (1) Land Act).
19. Notice
The applicant is expected to give not
less than fourteen days notice in writing
to the owner of the servient land and the
county government having jurisdiction
in the area where the dominant and
servient land are located of the intention
to apply for an entry order.
20. Orders by court
The court hears and determines the application
making the following orders:
To enter the servient land either personally or
through agents for any purpose specified in the
entry order;
to use any equipment or machinery over the
servient land for a time specified in the entry
order;
To store materials necessary for work in the
servient land and in any quantities specified in
the entry order.
21. FACTORS CONSIDERED BY THE
COURT IN MAKING THE ORDERS
The court considers:
Nature and conduct of the negotiations between
the owner of the dominant land and the owner of
the servient land with respect to the easement;
Urgency, importance and desirability of the work
the order is made with regards to;
Scope of the work and length of time;
Whether necessary permissions and licenses have
been obtained from the relevant public
authorities;
Any other relevant matters.
22. CONDITIONS IMPOSED ON ENTRY ORDERS
Any conditions may be made including:
Period of time authorized;
Hours of the day work may be done;
Safety of persons on the servient land;
Preservation of natural features of the servient land;
Restoration of the servient land to its former condition after
the work is complete;
Maintenance of adequate access to the servient land;
Provision of security to secure:- performance of nay conditions
of the order, damage caused by entry or on the servient land or
reimbursement of the owner of the servient land for any costs
arising out of entry and any other relevant matter.
23. Note
Read Section 139(6) Land Act
If, as a result of fire, civil commotion or natural disaster, a
structure on the dominant land has become a threat to
public safety or public health, and there is an urgent need
to effect repairs to or demolish that structure and such
action may only be executed by entry on or over the
servient land, the owner of the dominant land may enter
the servient land and effect the repairs or demolition,
after giving at least twenty-four hours’ notice in writing to
the owner of the servient land, but the entry and
execution of works shall not prevent the owner of the
servient land from applying to the court for an order
requiring the owner of the dominant land to make good
any damage caused by the entry and works and to
reimburse the owner of the servient land for any costs,
expenses or loss arising from the entry and works.
24. Application for access order
This is provided for under section 140 of the Land Act
No. 6 of 2016.
An owner of landlocked land may apply in the
prescribed form to a court for an access order granting
reasonable access to that land.
A copy of the application shall be served on:
Owners of each piece of land adjoining the landlocked
land;
Anyone claiming interest in any such piece of land of
whom the applicant has actual notice;
County government having jurisdiction in the area where
the landlocked land is located;
Anyone occupying or having interest in land in which
the opinion of the court may be affected by the granting
of the application.
25. Factors considered in making
an access order
The court may consider:
Nature and quality of the access if nay to the landlocked
land when the applicant first occupied the land;
Circumstances in which the land became landlocked;
Nature and conduct of negotiations id nay between the
owners of the landlocked land an the adjoining land or
other land with respect to the easement;
Comparison between hardship caused by refusal of the
application to the owner of the landlocked land and the
other person;
Purpose of access;
Any other relevant matter.
26. Conditions imposed on access
orders made
Any condition may be imposed including:
Period of access order;
Payment of reasonable compensation to other person;
Allocation of the costs of any work necessary to give
effect to the order between the applicant and the other
person;
Fencing and upkeep of any land affected;
Upkeep of land over which access order ahs been
granted;
Execution of nay instrument or document or form for
doing nay other thing necessary to give effect to the
order;
any other relevant matter.
27. Note..
According to section 140(6) of the Land
Act, an access order made under section
140 of the Act shall be deemed to have
all the characteristics and incidents of an
easement and the land over which it has
been granted shall be deemed to be the
servient land and landlocked land shall
be deemed to be the dominant land in
respect of that easement.
28. CANCELLATION OF EASMENTS
(TERMINATION)
The modes of termination are specified in section 99 of
the Land Registration Act.
Section 99(1)An easement granted or an analogous right
created under this part may be cancelled by the person
occupying the dominant land.
Section 99(2)The cancellation shall be effected in the
prescribed form and the easement, analogous right shall be
extinguished on the date that cancellation is recorded in the
register
Section 99(3)On the application of any person occupying
servient land, the Registrar may cancel an easement or an
analogous right if the registrar is satisfied that
29. CONTINUATION
a) The period of time for which the easement or
analogous right was intended to subsist has expired ;or
b) The event upon which the easement or analogous right
was intended to terminate has occurred.
Section 99(4) the consent of any lessee or lender for the
time being entitled to the benefit of any easement or
analogous right shall be necessary for any cancellation of
any such easements or analogous rights and such shall be
signified in the prescribed form
