SOM MEDIA - Invidious

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SOM MEDIA

LETTER TO ‪@DeeMwango‬ ‪@ItsMORAA-v1x‬ ‪@SnrZack‬ ‪@davidomaje‬ ‪@davyjnr3009‬ ‪@iammarwa‬

LEGAL ADVICE ON RIGHT OF WAY INTERFERENCE
BACKGROUND
Dee Mwango has commenced construction on a parcel of land gifted to her by her father.

The access to the construction site has traditionally been via a footpath used for over 12 years by trucks and other vehicles without objection.

Recently, neighbors have blocked or restricted this access path, claiming that trucks delivering materials are damaging their plots.

They have fenced the path, leaving only 6 feet—too narrow for trucks—effectively impeding development.

LEGAL POSITION
1. Right of Way Through Prescription (Easement by Prescription)
Under Kenyan law, if a path or right of way has been used openly, peacefully, and continuously for at least 12 years, the user can acquire a prescriptive easement (legal right to continue using it).

Legal Basis:
Section 38, Limitations of Actions Act (Cap 22, Laws of Kenya):

“Where a person has been in possession of land or right over land for a period of 12 years, he may apply to the High Court to be registered as the proprietor of that land or right…”

Supporting Case Law:
Wambugu v Njuguna (1983) KLR 172:

The Court held that possession and use that is open, continuous, and without interruption for over 12 years can lead to acquiring rights under adverse possession or prescriptive easements.

Kariuki v Muthoni (2004) eKLR:

The applicant was granted a right of way because he had used a footpath for over 14 years without interruption.

Application to Dee:
Dee or her family have used the access way for over 12 years, and this continued use can be formalized into a legal right of way. The sudden fencing and restriction is illegal interference with this acquired right.

2. Doctrine of Equitable Estoppel
If neighbors knew and allowed the use of the path without protest for years, they cannot suddenly revoke it to the detriment of Dee.

Legal Basis:
Section 120 of the Evidence Act (Cap 80):

"When one person has, by his declaration or conduct, caused another to believe something and to act upon it, he shall not be allowed to deny it.”

This applies when:

The neighbors allowed use of the path over time,

Dee has relied on this conduct in starting construction,

They cannot now block it in bad faith.

3. Unlawful Obstruction and Nuisance
If neighbors block or obstruct a public or established private access, it could amount to nuisance or unlawful interference.

Legal Action:
Dee may file for an injunction in the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2011.

Section 3A of the Civil Procedure Act gives courts inherent power to prevent obstruction of justice.

RECOMMENDED LEGAL ACTIONS
1. Send a Legal Demand Letter
A lawyer should immediately send a cease-and-desist letter to the neighbors warning against:

Obstruction of the access path,

Harassment,

Interference with ongoing construction.

2. Apply for a Court Injunction
File a suit in the Environment and Land Court seeking:

Declaration of prescriptive right of way,

Injunction to restrain further blockage,

Compensation for any delays and damages.

3. Survey Report
Engage a licensed land surveyor to:

Prepare a map of the access way,

Document its use and width over time,

Use as evidence in court.

4. Collect Witness Statements
Neighbors who used the path or saw trucks passing in the past can give statements supporting:

Long-standing use,

No prior objection,

Good faith reliance.

ADDITIONAL PROTECTION UNDER THE LAW
Constitutional Provisions
Article 40(1) – Every person has the right to acquire and own property.

Article 40(2) – Parliament shall not enact a law that arbitrarily deprives a person of property or any interest.

Article 43(1)(b) – Right to accessible and adequate housing, which includes freedom from arbitrary obstruction.

CONCLUSION AND SUMMARY ADVICE
Dee Mwango has a strong legal basis to claim and defend her right to use the access path, especially since:

It has been used for over 12 years without dispute,

Neighbors' action seems motivated by malice or jealousy, not legality,

There’s a constitutional and statutory right to access and develop property.

🔒 Immediate Action:

Get a lawyer to send demand letters.

Apply for court orders (injunction and declaration of easement).

Document use history and witness support.