1.The Plaintiffs instituted this suit vide a Plaint dated 26th March, 2008.
2.It is their averment that the 1st Plaintiff is a registered proprietor of the leasehold interest in in Land Reference Number 5663/1 registered as IR Number 4267/1 measuring 50 acres situate in the south Est of Gilgil Township while the 2nd Plaintiff is a tenant of the 1st Plaintiff.
3.It is their averment that the 2nd Plaintiff is currently in occupation and carries on animal conservancy and other related activities.
4.It is also their averment that the Defendant is the registered proprietor of the leasehold interest in L.R No. 5663/2 and 5295/2 which borders L.R No. 5663/1 on the South western side.
5.They aver that LR. No. 56631 and 5663/2 and 5295/2 were at all material times part of L.R. No. 5663 (Original Title Number 3777/41/21) measuring approximately 2103 acres and registered in the name of Apperly Estates Limited.
6.The Plaintiffs aver that by a transfer dated 25th April, 1936, APPERLY ESTATES LIMITED transferred LR No. 5663/1 measuring 50 acres to Fredrick Joseph Empson and Charles Webb Foster as tenants in common adding that the ownership of the said parcel has severally changed over the years until it was acquired by the 1st plaintiff on 13th December, 1994.
7.The plaintiffs aver that the transfer of LR Number 5663/1 from Apperly Estates Limited was subject to several conditions one of which was right of way upon the road traversing LR. No 5663 (Original Number 3777/41/20) giving the owner of LR. No. 56631 direct access to the Nairobi-Nakuru Highway.
8.It also their averment that all subsequent owners of LR. No. 5663/1 including the 1st Plaintiff’s employees, servants and agents or persons authorised by them have inherited and enjoyed the right of way without any interference.
9.They aver that in violation of their right of way, the Defendant has unlawfully locked the gate and barred them from using the access road traversing L.R Nos. 5663/2 and 5295/2.
10.They aver that as a result of the actions of the Defendant, they have been denied a direct 5 km access to the Nakuru- Nairobi Highway and are compelled to access the Highway through Gilgil town, a distance of more than 30 km on an impassable road.
11.They aver that the business of the 2nd Plaintiff has been adversely affected due to inaccessibility by clients and suppliers and both of them have suffered loss and damage.
12.The Plaintiffs pray for judgement against the Defendant for:a.A mandatory injunction do issue against the Defendant its employees servants and/or agents to re-open the gate and remove all the barriers on the road traversing Land Reference Numbers 5663/2 and 5295/2 and allow the Plaintiffs, their employees, servants, agents and/or clients enjoyment of the Plaintiff’s right of access.b.General damages for breach of the right of access.c.Any other order that this Honourable Court may deem fit to grant.d.Costs.
13.I have perused the court record and did not did not find the Defendant’s Statement of Defence.
14.The suit proceeded ex parte after the court satisfied itself that the Defendant had been duly served, as evidenced in the affidavit of service sworn on 8th March, 2022.
15.At the hearing, Christine Mary Campbell testified as PW1. She prayed that her witness statement dated 25th April, 2022 be adopted as part of her evidence and it was so adopted.
16.PW1 also made reference to a list of documents dated 13th March, 2013. The documents were produced in the following order:-1.Resolution by Malewa Bush …………Exhibit P12.Resolution by Portsman bridge…… Exhibit P23.Certificate of the title dated 29th April, 1936………………………………………….Exhibit P34.Registry of titles dated 29th April, 1936…….…………………………………………………Exhibit P45.Agreement dated 28th January, 2006.Exhibit P56.Letter dated 31st July, 2007…………..Exhibit P67.Letter dated 18th September,2007…..Exhibit P78.Letter dated 21st March, 2008..........Exhibit P89.Letter dated 15th October, 2008........Exhibit P910.Letter dated 18th October, 2008 …. Exhibit P1011.Letter dated 10th October, 2008…..Exhibit P1112.Letter dated 4th October, 2008…….Exhibit P12
17.PW1 testified that she is a director of the 2nd Plaintiff and a tenant on the 1st Plaintiff’s parcel of land.
18.It was her testimony that she has authority from the 1st Plaintiff to testify on its behalf adding that the suit is for order of mandatory injunction against the Defendant.
19.PW1 went on to testify that the Defendant opened the access road on 4th October, 2010 on account of interim orders granted by the court. It was her further evidence that before that, the road remained closed for 3 years.
20.She testified that her business was adversely affected because most of her clients are from Nairobi and they were unable to access the property. She further testified that before she moved the court, she approached the Defendant on numerous occasions but it did not open the access road until the court gave its orders.
21.In her witness statement dated 25th April, 2022 PW1 also states the 1st Plaintiff is the registered proprietor of L.R No 5663/1 registered as I.R 4267/1.
22.She further states that the 2nd Plaintiff is a tenant of the 1st Plaintiff currently in occupation of the suit parcel and carries on animal conservancy and other related activities. She states that the Defendant on the other hand is the registered proprietor of L.R Nos. 5663/2 and 5295/2 bordering the 1st Plaintiff’s parcel.
23.PW1 in her statement states that L.R Nos 5663/1, 5663/2 and 5295/2 were part of L.R No. 5663 (original number 3777/41/20) and registered in the name of THE APPERLY ESTATES LIMITED.
24.In her written statement, PW1 states that by a transfer dated 25th April, 1936 the said THE APPERLY ESTATES LIMITED transferred L.R No. 5663/1 to Fredrick Joseph Empson and Charles Webb Foster as common tenants. She states that the ownerships of the said parcel of land changed several times until 13th December, 1994 when the 1st Plaintiff acquired it.
25.She further states that the transfer of L.R No. 5663/1 from THE APPERLY ESTATES LIMITED was subjected to several conditions one being the right of way upon the road traversing L.R No. 5663 giving the 1st Plaintiff herein direct access to the Nairobi-Nakuru highway.
26.PW1 states that in complete violation of the Plaintiffs’ right of way, the Defendant have unlawfully locked the gate and barred the Plaintiffs’ from using the access road traversing L.R No. 5663/2 and 5295/2 thereby violating their right of way.
27.Further in her witness statement, she states that the Plaintiffs have been denied a direct 5-kilometer access to the Nairobi-Nakuru highway and therefore compelled to access the highway through Gilgil town, a distance of more than 30 kilometers on an impassable road.
28.She also states that the business of the 2nd Plaintiff has as a result been adversely affected due to accessibility by clients and suppliers. It is her statement that as a result, the court in October, 2010 issued temporary orders compelling the Defendant to grant them access to the said road.
29.PW1 in her written statement in conclusion urges the court to grant them the prayers as sought in the plaint.
30.This marked the close of the Plaintiffs case.
ANALYSIS AND DETERMINATION.
31.As at the time of writing this judgment, I have not seen submissions by the Plaintiff.
32.My analysis and determination is therefore based on the Plaint, the oral evidence by the single witness of the Plaintiffs, the documents produced in evidence and the Plaintiffs’ witness statement.
33.PW1 produced a resolution passed by directors of Malewa Bush Ventures and Portman’s Bridge Limited as evidence of authority to testify on behalf of the Plaintiffs.
34.The dispute between the Plaintiff and the Defendant pertains to an easmentary right. The question for determination isa.Whether a mandatory inunction should issue against the defendant to re-open the gate and remove all the barriers on the road traversing Land Reference No. 5663/2 and 5295/2.b.Whether the Plaintiffs are entitled to general damages for breach of right of access.c.Who should pay costs of the suit.
A. Whether a mandatory inunction should issue against the Defendant to re-open the gate and remove all the barriers on the road traversing Land Reference No. 56663/2 and 5295/2.
35.PW1’s claim is based on conditions attached to certificate of title L.R. No. 3079/5. I.R No.3079/5. It is the instrument through which Apperly Estates Limited transferred LR No. 5663/1 measuring 50 acres to Fredrick Joseph Empson and Charles Webb Foster as tenants in common.
36.The 1st Plaintiff is among several persons who over the years have acquired proprietary interest in the parcel LR No. 5663/1, the 1st Plaintiff’s rights having been acquired on 13th December, 1994.
37.I have seen at page 2 of L.R. No. 3079/5. I.R No.3079/5 a condition giving
38.As stated earlier, this claim is founded on breach of a right of easement. An easement is an interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it for a specific limited purpose such as crossing it for purposes of access to a public road.
39.The land benefitting from an easement is the dominant estate and the one burdened by an easement is the servient estate. Easements are of different kinds. From my assessment, this suit is concerned with right of way. That is right of entry (ingress) and right to exit (egress).
40.This right which burdens the servient estate lasts forever and a change of ownership does not stand in the way of the existence or enjoyment of this right. Whoever acquires the servient estate is bound by the burdens touching and running with the land.
41.The documents produced confirm that an easmentary right exists as between Land Reference No. 5663/2 and 5295/2 owned by the Defendant and Land Reference No. 5663/1 owned by the 1st Plaintiff.
42.The circumstances presenting in this case are that are that the Defendant had denied the 2nd Plaintiff, (a lessee of the 1st Plaintiff) the right of way. This is supported by numerous letters that have been exchanged between the parties herein. The letters express displeasure and are also evidence of failed attempts at a compromise. These are Exhibits P6 -P12.
43.A mandatory injunction is a superior order and which, by itself, when granted recognizes the Plaintiff’s claim. It is for this reason that it ordinarily not granted at the interlocutory stage save for when special circumstances exist and in clear cases.
44.PW1 testified that the court granted them mandatory injunction at the interlocutory stage which ordered the Defendant to re-open the gate and remove all the barriers on the road traversing Land Reference No. 5663/2 and 5295/2. This order was issued on 1st October, 2010. What’s left is for the trial court to find that the mandatory injunction was rightly granted.
45.Taking into account the decisions cited, documents produced, oral evidence and written statement of the Plaintiffs, I find that the Plaintiffs have fulfilled their evidentiary burden and as such this court grants them and confirms the orders of mandatory injunction previously issued at the interlocutory stage.
B. Whether the Plaintiffs are entitled to general damages for breach of their right of access.
46.In Jogoo Kimakia Bus Services Ltd Vs. Electrocom International Ltd  KLR 177 the Court of Appeal gave a distinction between general and special damages. It stated as follows:
47.PW1 in her evidence stated that Defendant opened the access road on 4th October, 2010 on account of interim orders granted by the court. It was her evidence that before that, the road remained closed for 3 years.
48.She testified that on account of the actions of the Defendant, her business was adversely affected because most of her clients are from Nairobi and they were unable to access the property. She further testified that before she moved the court, she approached the Defendant on numerous occasions but it did not open the access road until the court gave its orders.
49.It is also her evidence that during the period of three years they were denied direct 5 km access to the Nakuru- Nairobi Highway and were compelled to access the Highway through Gilgil town, a distance of more than 30 km on an impassable road.
50.Based on my finding in A above, there is no doubt that the Defendant was in breach of the conditions attaching to its enjoyment of Land Reference No. 5663/2 and 5295/2 which in turn led to an infringement of the Plaintiffs’ right of easement over the said parcels.
51.By blocking the access road, the Defendant acted unreasonably and in bad faith. This caused great inconvenience and loss to the Plaintiffs which ought to be compensated.
51.The question that follows is what principles ought to guide the court in awarding damages. In China Wu Yi Limited & another Vs Irene Leah Musau  eKLR, the learned Judge cited with approval the decision in Southern Engineering Company Ltd Vs Musisngi Mutia (1985) KLR 730where it was held that:
51.An analysis of this holding is that a Judge has discretion in the award of general damages and that this discretion has to be exercised judiciously taking into account conditions prevailing in the country and prior decisions relevant to the case in question.
51.The Plaintiffs’ testimony points to the hardship encountered by them for 3 years covering a distance of 30 kilometers instead of 5 in order to access the Nakuru – Nairobi Highway. This caused the 2nd Defendant’s business to suffer due to inaccessibility by their suppliers and clients.
51.As stated in the preceding paragraphs, general damages are awarded as recognition of an infringement of a legal right or duty. In Coast Neurology Center Ltd vs Mohammed Kasim Bakari & 3 others  eKLR. The Learned Judge awarded Kshs.3,000,000/= for general damages for breach of trust and fiduciary duty. In the same breath, I am of the view that Kshs.3,000,000/= would be adequate compensation for breach of the Plaintiffs’ easmentary rights.
C. Who should bear the cost of this suit
51.The general rule is that costs shall follow the event in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap.21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. This was the holding in Hussein Janohamed & Sons Vs Twentsche Overseas Trading Co. Ltd (1967) EA 287.
51.In Shaneebal Limited Vs County Government of Machakos  eKLR, the Learned Judge cited with authority the decision in Karuru Munyororo Vs. Joseph Ndumia Murage & Another Nyeri HCCC No. 95 of 1988, where it was held that;
51.The Upshot of the foregoing is that the Plaintiffs’ suit as against the Defendants succeeds and I grant orders as follows:a.A mandatory injunction is hereby issued against the Defendant its employees servants and/or agents to re-open the gate and remove all the barriers on the road traversing Land Reference Numbers 5663/2 and 5295/2 and allow the Plaintiffs, their employees, servants, agents and/or clients enjoyment of the Plaintiff’s right of access.b.General damages are awarded to the Plaintiffs in the sum of Kshs. 3,000,000/= (Three million only) plus interest from the date of this judgment until payment in full.c.The Plaintiffs shall have the costs of the suit and interest thereon from the date of this judgement until payment in full.
51.It is so ordered.