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Court of AppealDismissedCivil Appeal No 142 of 2018· [2023] KECA 1089 (KLR)

Kenya Electricity Transmission Co Ltd v Obonyo & another (Civil Appeal 142 of 2018) [2023] KECA 1089 (KLR)

Court of Appeal of Kenya
22 September 2023
FTF. TuiyottJMJamila MohammedJNJoel Ngugi
1,702 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled a clumsy but fixable lawsuit against KETRACO must go to full trial rather than be thrown out early.

What this practically means

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Executive summary

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KETRACO appealed a ruling of Kibunja, J. of the Environment and Land Court at Kisumu, delivered on 2 May 2018, dismissing its notice of motion dated 14 February 2017 seeking to strike out a trespass suit by the respondents concerning power lines erected on parcels Kisumu/Kasule/6708, 6709 and 6710, allegedly without compensation to the original owner. KETRACO argued that, having been incorporated only on 2 December 2008, it could not be liable for trespass committed in 1983, and that the respondents neither pleaded nor proved that it assumed ownership or control of the offending lines. Before the Court of Appeal, KETRACO abandoned its challenge to the limitation holding, leaving one issue: liability for lines it disowns and which predate its incorporation. Tuiyott JA, writing for the full bench, applied the D.T. Dobie gold standard on striking out, holding that the inelegant plaint nevertheless revealed a case of continuing trespass and an averment that KETRACO either owns or controls the power lines. The question of ownership of the transmission line, he held, properly emerges from the pleadings and must be preserved for resolution by evidence at trial; the trial judge's dismissal of the striking-out motion was correct. Jamila Mohammed JA and Joel Ngugi JA concurred. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Principles governing striking out of pleadings

Holding

The D.T. Dobie standard governs: a suit is only struck out if it is hopeless and incurable by amendment.

Reasoning

The court reaffirmed the classic Madan JA formulation in D.T. Dobie, holding that a pleading revealing even a semblance of a cause of action should go to trial. The plaint, though inelegant, disclosed that the respondents accused KETRACO of unlawfully entering and continuing to occupy the land via the power lines, implying KETRACO's ownership or control of them. Such a claim could be revamped by amendment and could not suffer the fatal fate of striking out.

p. 4
02

Whether KETRACO could be liable for trespass arising before its 2008 incorporation

Holding

The success of the respondents' case turns on proof that KETRACO assumed ownership of the power lines after incorporation; this is a triable issue, not one for striking out.

Reasoning

The court accepted KETRACO was not incorporated in 1983 when the trespass allegedly commenced, but noted the respondents' case is that the trespass continues to date. Whether KETRACO took over ownership or control of the lines emerges from the pleadings and requires evidence at trial; the abandonment of the limitation ground left this as the sole issue, incapable of summary resolution.

p. 4

Legal principles established

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  • A suit should not be summarily struck out if it discloses even a semblance of a cause of action curable by amendment; courts should not punish inelegant pleadings.
  • Where trespass is continuing, limitation does not bar the claim and liability may attach to a defendant who later assumed ownership or control of the offending structures.

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Limitation of Actions Actsection 4

Cases cited (3)

  • Peter Mwangi Kabui v. Rural Electrification Authority
    [2016] eKLR
  • Clement Muturi Kigano v Kibera Development Company Limited
    [2019] eKLR
  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
On appeal from
Environment and Land Court
Kisumu Environment and Land Court Case No. 334 of 2016
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the Environment and Land Court (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Electricity Transmission Co Ltd v Obonyo & another (Civil Appeal 142 of 2018) [2023] KECA 1089 (KLR)", Case Analysis (2023). Civil Appeal No 142 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1089/eng@2023-09-22

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