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Court of AppealDismissedCivil Appeal (Application) No. E512 of 2020· [2021] KECA 844 (KLR)

Dupoto Farms Limited v Kenya Electricity Transmission Company Limited & 121 Others

Court of Appeal
19 March 2021
1,133 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop KETRACO building power lines over Dupoto Farms' land, holding public projects with fair compensation override private land rights.

What this practically means

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Executive summary

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The applicant, Dupoto Farms Limited, moved the Court of Appeal under Articles 25(c), 50(1) and 163(4)(b) of the Constitution and sections 3 and 3A of the Appellate Jurisdiction Act seeking an injunction to restrain Kenya Electricity Transmission Company Limited (KETRACO) from interfering with its possession of Kajiado/Lorngosua/2338 pending an appeal against a ruling of the Environment and Land Court at Kajiado (Ochieng, J., 21 September 2020) in ELC Case No. 30 of 2020. That ruling had declined an injunction and permitted KETRACO to proceed with the 132 Kv Kajiado-Namanga and 400 Kv Kenya-Tanzania transmission lines across the suit property before agreement on compensation for easements gazetted on 21 April 2017. The court, disposed of by submissions, applied the two-pronged test for an injunction pending appeal. It found the appeal arguable, since a single non-frivolous ground suffices, drawing on University of Nairobi v Ricatti Business of East Africa. On the nugatory prong, however, it held that the right to property under Article 40 is not absolute: land may be deprived for a public purpose upon payment of just compensation, negotiations on quantum were ongoing, and failing agreement the National Land Commission may determine the amounts payable. Public interests take priority over private interests, and the court saw no basis to disturb the trial judge's discretionary orders. The application was dismissed with each party bearing its own costs. The court expressly refrained from making a definitive statement on the judge's discretion. This ruling binds subordinate courts on the injunction-pending-appeal test it restates.

Key legal issues

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01

Whether an arguable appeal was demonstrated

Holding

The appeal was arguable on the grounds set out in the memorandum of appeal

Reasoning

Applying the established test, the court held that an arguable appeal is one that is not frivolous and merits full consideration; a single arguable ground suffices. Having perused the memorandum of appeal, which faulted the trial judge for, among other things, allowing construction before compensation, the court concluded the appeal was arguable.

p. 2
02

Whether the appeal would be rendered nugatory unless an injunction was granted

Holding

The nugatory prong was not satisfied

Reasoning

The court held that the right to property is not absolute and may be limited for public purpose upon payment of just compensation. The 1st respondent genuinely required the easement, was prepared to pay compensation, negotiations on quantum were ongoing, and failing agreement the National Land Commission may determine amounts. Public interests take priority over private interests, so refusal of the injunction would not render the appeal nugatory.

p. 2

Legal principles established

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  • An order of injunction pending appeal requires demonstration of an arguable appeal and that the appeal, if successful, would be rendered nugatory unless the injunction is granted.
  • An arguable appeal need not be one that must succeed; it suffices that it is not frivolous and merits full consideration, and a single arguable ground is sufficient.
  • The right to property under Article 40 is not absolute; the State may deprive a person of land for a public purpose upon payment in full of just compensation.

Court orders

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  1. 1.The application for injunction pending appeal is dismissed
  2. 2.Each party shall bear its own costs of the application
On appeal from
Environment and Land Court at Kajiado
E.L.C. Case No. 30 of 2020
Jurisdiction invoked
Articles 25(c), 50(1) and 163(4)(b) of the Constitution and sections 3 and 3A of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dupoto Farms Limited v Kenya Electricity Transmission Company Limited & 121 Others", Case Analysis (2021). Civil Appeal (Application) No. E512 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/844/eng@2021-03-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.