THE UNIVERSITY OF NAIROBI

GROUP 15
GPR 216 PROPERTY LAW

NATURE, CREATION AND TERMINATION OF EASEMENTS, WAYLEAVES, ACCESS

ORDERS AND CHARGES

COURSE INSTRUCTOR: Prof. Patricia Kameri Mbote

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 GROUP 15 MEMBERS

NAME REG NO. SIGNATURE

BRUNO OKASIBA G34/83589/2017
KATHURIMA WENDY NTINYARI G34/83459/2017
MOGITA MAOSI MICHAEL G34/2659/2016
MBUNDE LILIAN KEMUNTO G34/83481/2017
KAASYA SARAH MUENI G34/83458/2017
NGWENYI PENINAH HIUKO G34/86127/2017
RAPHAEL OTIENO MIRIMO G34/83554/2017
ODERO EILEEN ROSE G34/83561/2017
MURITHI ELSA SONIE G34/42412/2017
NYOKABI NANCY NJOKI G34/46693/2017

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 TABLE OF CONTENTS
INTRODUCTION……………...…………………………………………….....…….…...4
1 EASEMENTS…………...…………………………………………….....…………..…..4

i. Nature of Easements……………………………………………......……….4
ii. Creation of Easements………………………………………….….……..…4
iii. Termination of Easements……………………………………….…….……5
2. WAYLEAVES………………………………………………………………….……….6

i. Nature of Wayleaves...............................................................................................6
ii. Creation of Wayleaves…………………………………………………….…...…7
iii. Termination of Wayleaves………………………………………………….….....7
3. ACCESS ORDER……………………………………………………………….………8

i. Nature of access order…………………………………………………….……….8

ii. Creation of access order…………………………………………………….……..9
iii. Termination of access order……………………………………………….…...…10
4. CHARGES………………………………………………………………………...…….10

i. Nature of charges………………………………………………………….………11
ii. Creation of charges………………………………………………………………..12
iii. Termination of charges…………………………………………………………....12
5. CONCLUSION…………………………………………………………………….……14
BIBLIOGRAPHY & REFERENCES…………………………………………….…..….15

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 INTRODUCTION
Derivative rights can be defined as rights or interests in land that do not entitle the holder the
possession of the land1. Consequently, the law permits a person holding the interest in the land in
terms of derivative rights certain privileges.

The Land Act 20122 and Land Registration Act 20123 under part x, contain provisions which
regulate the creation, enjoyment and cancellation of easements, wayleaves and charges as the
subsets of derivative rights.

1. EASEMENTS
An easement can be described as a property right by a person or a group of people to use the land
of another for a special purpose not inconsistent with the general property right of the owner of
the land4. Easements can be classified into various categories; affirmative easement- allows the
holder to do certain acts on another’s land; we also have a negative easement- allows the holder
to prevent the owner from doing acts on his own land; express easement- is one created by direct
action of the parties while an implied easement- is created by operation of law from the peculiar
facts and circumstances of the land.

i. Features of easements;
 It gives the right to the owner of the interest to a limited use or enjoyment of the land in
which the interest exists
 It entitles the owner to protection against third persons who may interfere with the use or
enjoyment of the property.
 Possessor of the land’s will is key i.e. subject to his will.
 It is not a normal incident of the possession of any land possessed by the owner of the
interest
 An easement can be created by conveyance

ii. Creation of easements

Easements may be created by express act of the parties or by implication or prescription. The
formal requirements for the creation of an easement inter vivos are similar to those involved in
transferring an estate in land of like duration.

Easements by implication can be of three types: quasi easements; easements of ingress and egress
are implied by necessity; and those implied from representations relied upon by purchasers of land.
Quasi easements arise where the dominant and the servient lands are owned by the same person,

1
Francis Kariuki, Smith Ouma & Raphael Ngetich, Property Law (1st Edition, Strathmore University Press 2016)
2
Land Act, 2012
3
Land Registration Act, 2012
4
Francis Kariuki, Smith Ouma & Raphael Ngetich, Property Law (1st Edition, Strathmore University Press 2016)

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it may be converted to a true easement where the owner sells one of the pieces of land. Easements
of ingress and egress are implied by necessity where the intention of the parties is presumed that
in the public interest the full utilization of land requires some sort of access to isolated tracts of
land and continues so long as the necessity exists. Easements implied from representations relied
upon by purchasers will obtain certain interests in nearby lands.

Easements created by prescription or adverse possession can create an interest in another’s land
after the statutory period, it follows that adverse use of another’s land.

In Kenya the land registration act provides under section 98 for the creation of easements where
it states that it can be created through execution of an instrument through a prescribed form.
Such instruments are effective once registered as was held in Kenya Electricity Transmission co
Ltd v Kedong Ranch Ltd and 3 others [2015] eKLR5 where the plaintiff was claiming to have
an easement pursuant to three agreements with only one agreement executed and the other two
not executed. The application was dismissed on the basis that no easement had been registered.

iii. Termination of easements

i. Expiration-When the time limit of the easement expires, this leads to the end of the easement.
Also this happens when there was an agreement between the easement holder and the owner of
servient tenement that when there is an occurrence of a certain event the easement will end.

ii. Merger of title-The merger of title happens when the same person owns both the dominant
tenement and the servient tenement at the same time which leads to the end of the easement.

iii. Abandonment/ release by easement holder-Abandonment happens when the easement

holder shoes clear intent to stop using easement permanently. None use is not merely enough to
conclude the easement, there must be clear intent and conduct over a period of sometime.
Release occurs when the easement holder releases the servient tenement from the terms of the
easement. This may be dome on owner’s accord or as part of a deal with owner of servient
tenement.

iv. Cessation of the purpose of the easement-Occurs when the purpose that led to the creation
of the easement extinguishes. This happens with the easements of necessity, when the necessity
that led to the creation of the easement comes to an end so does the term of the easement.

v. Destruction of servient tenement-When the part of the servient estate that the easement
applies to (for example, power line through servient estate) gets destroyed, this results to the end
of the easement. The destruction should be no fault of the servient holder otherwise he/she will
be liable to pay for the damages and the easement will not end.

5
Kenya Electricity Transmission co Ltd v Kedong Ranch Ltd and 3 others [2015] eKLR

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vi. Prescription-This occurs when the owner of the servient tenement excludes the easement
owner from usage of the easement for the prescribed statutory period of time.

vii. Estoppel. This happens when the holder of the easement engages in conduct that leads to the
owner of the servient tenement to believe that the easement has been abandoned and the owner
of the easement acted to her detriment based of such belief.

2. WAYLEAVES
According to Black law’s dictionary, a “wayleave is a right of way over or ``through land for the
carriage of minerals from a mine or quarry. It is an easement, being a species of the class called`
`rights of way’’ and is generally created by express grant or reservation6. In relation to the
wayleaves Act Cap 292 Laws of Kenya, the Government may create a wayleave into, through over
or under any lands whatsoever but may not in doing so interfere with any existing building. 7 The
purpose of wayleaves is that it mandates an authorized person to enter into the servient land for
purposes of executing such works such as building and maintaining installations and structures on
the servient land and to pass and repass along the wayleave in connection with the purposes of the
institution or bodies concerned.

i. Nature of wayleaves.
A wayleave is normally a temporary arrangement and does not automatically transfer to a new
owner or occupier. A wayleave is normally established by a written agreement known as the
wayleave consent between the land owner at the time and the company seeking to use their land
hence it cannot be transferred to another person.
There should be a consensual agreement between the company seeking a wayleave and the
landowner. In the case of Kenya Electricity Transmission Company v Lapton Lengidi & 3 others
[2018]eKLR8, the plaintiff had tried installing electricity transmission lines without the consent
of the defendants with some help from security officers. The court held that the Kenya Electricity
Company should pay the defendants 7,728,198 shillings as compensation for the damage caused
to their land and the wayleave was revoked when a permanent injunction was issued against the
plaintiff.

6
Black’s Law Dictionary, (2nd Edition, Oxford press 2003)
7
Franc Odhiambo, “Beware of wayleaves when building” <https://www.standardmedia.co.ke> accessed 16
November 2019
8
Environment and land case No.474 of 2017, Kenya Electricity Transmission Company v Lpton Lengidi & 3
others[2018]eKLR

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 ii. Creation of statutory wayleaves
1. When the president is of the opinion that it is in the public interest that a right of way or
any other similar right over a land be created in respect of the whole or a part of any of the
works specified in section 2, the president may, subject to this Act, by executive
instrument, declare the land specified in the instrument to be subject to the statutory
wayleave specified in the instrument.
2. On the application of a wayleave instrument and without further assurance the land shall
be deemed to be subject to that wayleave which shall in accordance with the terms of the
instrument ensure to the benefit of the Republic, a statutory corporation specified in the
instrument, or the public generally.
3. A wayleave instrument shall contain
a) A description, with measurements of the land affected by the statutory wayleave
together with a plan showing the position of the works constructed on the land.
b) Particulars of the person or body for whose benefit the wayleave is to ensure,
and
c) Any other particulars of the works that the president thinks necessary or
expedient to include in the instrument.
4. A copy of a wayleave instrument shall be served on the owner or occupier of the land
affected by the statutory wayleave.
5. Where the owner or occupier cannot be found the wayleave instrument shall be posted in
a conspicuous place on the land and published in a newspaper circulating in the locality.
6. A land subject to a statutory wayleave shall, despite a rule of law, continue to be subject to
the wayleave until the wayleave is terminated in accordance with Regulations made under
this Act. 9

In the case of Kenya Power Lighting Company Limited v Josphat P.Kingara [2013] eKLR10 the
plaintiff sought an injunction to restrain the defendant from interfering with the laying of electric
power transmission lines on LR No.Ndumberi/Ndumberi/2296.The court held that the balance of
convenience would tilt in favor of the plaintiff who has a right to enjoy its public right of way as
the wayleave serves the public interest.

iii. Termination of a wayleave

i. When the right procedures have not been followed in the acquisition of land-In the case of
John Peter Mwangi v Kenya Land Commission & another [2019] eKLR 11 the wayleave was

9
Statutory Wayleaves Act,1963
10
Kenya Power Lighting Company Limited v Josphat P.Kingara [2013] eKLR
11
John Peter Mwangi v Kenya Land Commission & another [2019] eKLR

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terminated on the grounds that the acquisition process of land was not in line with article 40 of the
Constitution of Kenya 20101 and the Land Act sections 143,144,162(2).

ii. If the agreement is no longer binding due to change in ownership-In the case of Disa
Enterprises Ltd v Kenya Power & Lighting Co Ltd [2013]12 Disa enterprises filed a suit claiming
that the respondents had erected pylons in their land which was against the constitutional rights of
the petitioner. However, it was held that at the time the cables were erected the petitioners only
had a letter of allotment which was not proof for proprietorship hence the wayleave was not
terminated.

iii. The land owner serving a notice-In the case of Kenya Power and Lighting Company v
Fleetwood Enterprises Limited [2017] eKLR13 the respondent filed a suit against KPLC with the
following prayers; An order by way of a mandatory injunction to compel and direct the appellant
to immediately remove the illegal electric supply lines from the suit premises and A permanent
injunction restraining entering into or laying electric supply lines on the suit premises or otherwise
interfering with the suit premises. This followed a letter by the respondent to KPLC asking them
to stop erecting cables in the suit land but no action was taken. The prayers were allowed by the
court.

iv. When the time period lapses.

3. ACCESS ORDER
Access order refers to an application for a court order that entitles a person an order enabling
him/her to enter the neighboring land especially for the purpose of repairing or maintaining his
property. A court will not grant an access order unless the applicant has satisfied the court that
he has made reasonable efforts to reach an agreement with the person for the access is sought in
order only to allow genuine disputes before the court.

i. Nature of access order.

There are two types of access orders;

a) Neighboring land access order

12
Disa Enterprises Ltd v Kenya Power & Lighting Co Ltd [2013]
13
Kenya Power and Lighting Company v Fleetwood Enterprises Limited [2017] eKLR

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This is an order enables a person to access neighboring land, when they wish to rectify a
situation affecting their property for example trim a fence that has fallen to their land from the
neighbor’s land.

An applicant may be an owner of the land or just an occupier of the land. If an applicant is just
an occupier of the land, he must apply with consent of the owner but the courts have the
discretion to waive the requirement of the owner’s consent in cases where the consent has been
denied unreasonably.

b. Utility Services access order-

It is granted by courts in order to enable the applicant who uses a utility service that runs through
the neighboring land to access the neighboring land in order to carry out the work on that
particular service. E.g. if a sewer that services the house of the person runs through the
neighboring property and it gets blocked along the neighboring property, the court will grant an
access order in order to fix the blockage.

In granting utility service access order, an applicant can be any person who has a right to use that
particular utility service and hence it is not necessarily the owner of the land.

ii. Creation
The applicant must give a notice of 21 days of their intention to make an application whereby the
notice must contain clearly state the terms of the notice. A notice of intention to begin an
application in many cases serves to create room for the parties to be able to solve the dispute
amicably before initiating court proceedings. Such terms include;

i. The commencement date and time of access

ii. The date when the access is to be permitted.
iii. The time during which the access is to be permitted.
iv. Who must carry out the work
Then the notice must be served to the land owner against whom the access order is sought, any
individual with the right to use the utility service on which the work is proposed and eventually,
the applicant may serve the notice to any person whom he believes will be affected by the order.
A court before granting an access order, considers the following two main issues;

i. Whether the proposed work cannot be carried out or would be more difficult or expensive
to carry out without access to the neighboring land.
ii. Whether granting the order will cause unreasonable hardship to the person(s) affected by
such orders.
The court is entitled to refuse to grant an Access Order where it is satisfied that the neighbor would
suffer interference with or disturbance of his use of the land or any person in occupation would
suffer hardship to such a degree that it would be unreasonable to make an order.14

14
Ibid

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If satisfied that it’s necessary to grant the access order, a court can impose whatever conditions it
decides as reasonably necessary in circumstances pertaining the grant of access order which
include requiring the applicant to reinstate the neighboring land to the condition it was before the
access order was granted and in case of damages, to pay the indemnities.

iii. Termination of an access order.

1. An access order automatically terminates when the act against which an access order was sought
for is completed.

2. Termination can occur by an application to the court by an applicant or any other person
affected by the order.

3. Access order may be terminated when the applicant is in violation of the conditions set out by
the court and the owner of the land which was to be accessed is entitled to seek damages when
such a breach occurs.

4. CHARGES
A charge refers to a right that is created by the borrower, who may be a person or company, on
its assets and properties in favor of a lender such as a financial institution or a bank, whether
present or future.15

According to Section 3 of the Registered Land Act, a charge is an interest or lien created on land
or money’s worth or the fulfillment of any condition and includes a sub-charge and the
instrument creating a charge.16
Section 100 of the Transfer of Property Act 1882 provides a bearing on the definition of a charge
as in modern times. It provides that in circumstances where an immovable property of one
person is by act of parties or operation of law made security for the payment of another and the
transaction does not amount to a mortgage, the latter person is said to have a charge on the
property, and all the provisions which apply to a simple mortgage shall, so far as may be, apply
to such a charge.17

A charge essentially has two parties: the borrower and the lender. The borrower is the creator of
the charge whereas the lender is the holder of the charge. An agreement to create a charge may

15
Kanika Ahuja, “Creation, Types and Registration of Charge” (2019)
<https://www.academia.edu/16777082/Creation_Types_and_Registration_of_Charge> accessed 16 November
2019
16
Registered Land Act, section 3
17
The Transfer of Property Act, 1882. Section 100.

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be made in writing, where the borrower expresses his intentions to offer asset(s) as security for
repayment of the debt taken. The subject matter of a charge is usually current or future assets, or
any other assets owned by the borrower.

i. Nature and effect of Charges

Section 56(1) of the LRA provides that a proprietor may charge any land or lease to secure the
payment of an existing, future or s contingent debt, other money or money’s worth, or the
fulfillment of a condition. The charge should be in a form prescribed by the Cabinet Secretary
under section 110 of the LRA.18 Section 79(1) of the LA also makes reference to a charge by an
instrument in the prescribed form.19

Sections 56(5) of the LRA and section 80(1) of the LA state that charge shall have effect as a
security only and shall not operate as a transfer. 20

Section 79 (3) of the LA provides that a charge of a matrimonial home shall be valid only if
executed by the chargor and any spouse of the chargor living in the matrimonial home or there is
evidence that the document has been assented to.21

“Unless the lender’s remedies have been expressly excluded by instrument, the charge
instrument should contain a special acknowledgement that the chargor understands the effect of
that section, which should be signed by the chargor and the person attesting the affixation of a
common seal where the chargor happens to be a corporation.

The charge instrument may specify a date for the repayment of the loan, where it is not the case,
the loan is presumed to be payable three months after service of a written demand by the lender.

A second or subsequent charge can be created in the same way as the first charge where all the
provision shall apply, but any sale under the implied or expressed power shall be subjected to all
prior charges unless all those charges are discharged.
Consent must be obtained from the first chargee before creation of a second or subsequent
charge.

In cases where a charge contains a condition, whether expressed or implied, that the chargor will
not transfer, assign lease or sub-lease the without the chargee's permission, such transactions
shall not be registered until the written consent of the lender has been produced to the
Registrar.”22

18
Land Act,2012 section 56(1)
19
Land Act,2012 section 79(1)
20
Land Act,2012 section 56(5),80(1)
21
Land Act,2012 section 79(3)
22
I.K&M advocates in Kenya, “New Land Laws in Kenya, 2012-What you need to know” 28th May,2012
<www.ikm.co.ke> accessed on 21/11/2018 at 2100hrs

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 ii. Creation of charges
79 (5) of the LA provides that a formal charge shall take effect only when it is registered in the
prescribed register and that a lender cannot be entitled to exercise any of the remedies under the
charge unless it is so registered. Sections 43 (2) and 56 (3) of the LRA also require charge
instruments to be registered.23

Where applicable, before a charge is registered, land rent clearance certificate and the consent to
charge, must be provided.

Consents required before registration of charge under the LRA

a) Spousal Consent - Matrimonial Property - Section 93(3) (a).
b) Consent by County Land Management Board (if required) - Section 39.
c) Consent by the Commission if not freehold - Sections 55 & 56(4).
d) For leaseholds, consent by the lessor –Sections 55 & 56.
e) Land Control Consent under Land Control Act (where required).

Clearance required before registration of charge under the LRA

National or County Rent Clearance if not freehold – Sections 39, Sections 55 & 56(4) of the
LRA.

iii. Termination of a charge

A charge is terminated after the borrowing party makes full repayment of the debt owed to the
lender as stipulated in the mutual agreement

Right to discharge.
“Section 85(5) of the LA states that, for the avoidance of doubt, a discharge includes a re-
conveyance and a re-assignment of charge or any other instrument used in extinguishing of
interests in land conferred by charges.

85. (1) Subject to the provisions of this section, the chargor shall, upon payment of all money
secured by a charge and the performance of all other conditions and obligations under the charge,
be entitled to discharge the charge at any time before the charged land has been sold by the
chargee or a receiver under the power of sale.

23
Land Act, 2012 section 79,43 & 56

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(2) Any agreement or provision in a charge instrument that is inconsistent with subsection (1)
shall be void to the extent that it—
(a) purports to deprive the chargor of the right to discharge;
(b) Seeks to fetter the exercise of this right; or

(c) Stipulates for a collateral advantage that is unfair and unconscionable or inconsistent with the
right to discharge.

(3) A chargee may provide, in a charge instrument, that a chargor who wishes to exercise the
right to discharge the charge at any time before the expiry of the term of the charge—
(a) Shall give one month's notice of the intention to discharge; or

(b) Shall pay not more than one month's interest at the rate at which interest is payable on the
principal sum secured by the charge or at any lesser rate which may be agreed, as well as paying
all other money secured by the charge.”24

Charges that ae not filed with the Registrar of Companies for registration are to be considered as
non-compliant; they shall therefore be void as against the liquidator or any other creditor of the
company.25 Non-filing of the charge makes it void against the liquidators and creditors at the
time of liquidation but not void against the company.26

In Independent Automatic Sales Ltd. V Knowles & Foster27, a charge on future debts can be
created and if such a charge is not registered, it is to be considered as void.

Termination of a charge may occur during liquidation. The liquidator, on winding up the
company can ignore the charge and treat the concerned creditor as an unsecured creditor
therefore the property will be treated as free of charge.28

When the company fails to pay an additional fee for registration or registration for modification
of a charge to the Registrar within provided time, the charge may be regarded as void.

A charge may also be terminated when the borrower has defaulted in repayment and the lender
has seized his assets, sold them off and recovered the amount owed to him.

24
Land Act,2012 section 85
25
Kanika Ahuja, “Creation, Types and Registration of Charge” (2019)
<https://www.academia.edu/16777082/Creation_Types_and_Registration_of_Charge> accessed 16 November
2019
26
Kanika Ahuja, “Creation, Types and Registration of Charge” (2019)
<https://www.academia.edu/16777082/Creation_Types_and_Registration_of_Charge> accessed 16 November
2019
27
Ranjit Ray v D.A. David (1935) 5 Comp Cas 281 (Cal).
28
Kanika Ahuja, “Creation, Types and Registration of Charge” (2019)
<https://www.academia.edu/16777082/Creation_Types_and_Registration_of_Charge> accessed 16 November
2019

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 5. CONCLUSION
In conclusion, the Land Act 2012 and Land Registration Act 2012 clearly define and regulate the
position of derivative rights in Kenya. Several court pronouncements including the decision in
the case of Linda Telles v Director of Planning, Compliance and Enforcement & 6 others
[2018]eKLR29 project the extent to which courts in Kenya go in order to promote and regulate
these derivative rights in Kenya.

29
Linda Telles v Director of Planning, Compliance and Enforcement & 6 others [2018]eKLR

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 REFERENCES & BIBLIOGRAPHY
1 Francis K, Smith O and Raphael N, Property Law, Strathmore University Press, Nairobi,
2016.3
2 Munnery J, “What is the difference between a fixed and floating charge?”
<https://www.begbies-traynorgroup.com/articles/finance/what-is-the-difference-between-
a-fixed-and-floating-charge> accessed 16 November 2019
3 Ahuja K, “Creation, Types and Registration of Charge” (2019)
https://www.academia.edu/16777082/Creation_Types_and_Registration_of_Charge
accessed 16 November 2019
4 The Companies Act, 2014
5 The Companies Act, 2013
6 The Transfer of Property Act, 1882
7 Companies (Registration of Charges) Rules, 2014
8 The Land Act, 2012
9 The Land Registration Act, 2012
10 Kenya Power Lighting Company Limited v Josphat P.Kingara [2013] Eklr
11 John Peter Mwangi v Kenya Land Commission & another [2019] eKLR
12 Linda Telles v Director of Planning, Compliance and Enforcement & 6 others [2018]eKLR
13 Ranjit Ray v D.A. David (1935) 5 Comp Cas 281 (Cal)

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