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ELCDismissedELC Case of 2014 (Nakuru)· [2015] KEELC 628 (KLR)

Kenya Electricity Transmission Co Ltd v Kendong Ranch Ltd & 3 others [2015] KEELC 628 (KLR)

Environment and Land Court
19 February 2015
2,547 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to let KETRACO continue building power lines on land it admitted it held no easement over, stressing basic title searches.

What this practically means

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Executive summary

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The plaintiff, a state corporation mandated to operate Kenya's national electricity transmission grid, sought an interlocutory injunction under Order 40 Rule 1 of the Civil Procedure Rules restraining the defendants from interfering with its construction of an electricity transmission line on L.R No. 8396 pending hearing of the suit. The suit arose from easement agreements negotiated with the 1st defendant over the suit land; only one easement was executed, the remaining two were not executed nor registered, despite payment of over Kshs. 108 million. The 2nd, 3rd and 4th defendants, who were plaintiffs in Nakuru ELC No. 21 of 2010 (OS), opposed, relying on interim injunctive orders issued in that suit prohibiting dealings in the land during its pendency. The court noted that the injunction was registered against the title on 30 August 2011 and that the plaintiff's failure to conduct a basic title search amounted to a failure of due diligence. The court further observed that the plaintiff paid tens of millions before receiving executed easement instruments or proof of registration. Since the plaintiff's own plaint sought an order compelling the 1st defendant to deliver easements, it had effectively acknowledged holding no easement over the land. The court held that no prima facie case was established and that the balance of convenience favoured not erecting the lines pending delivery of easements, to avoid loss of public funds. The application was dismissed with costs.

Key legal issues

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01

Whether the plaintiff established a prima facie case for an injunction to continue construction

Holding

No prima facie case was established; the plaintiff's own pleadings acknowledged it held no easement

Reasoning

The court reasoned that the plaintiff's main prayer sought an order compelling the 1st defendant to give easements, which acknowledged it held no easement. If no easement is delivered and the alternative refund prayer succeeds, the lines would have to be relocated, causing huge loss of public funds. A party cannot claim entitlement to construct on land over which it admits holding no easement.

p. 4
02

Whether the plaintiff exercised due diligence before entering the easement transaction

Holding

The plaintiff failed to conduct a title search which would have revealed a registered injunction restricting dealings in the suit land

Reasoning

The court observed that an injunction was registered against the title on 30 August 2011 and that simple due diligence, least by way of a title search, would have revealed the restriction. The court found it curious that the plaintiff paid tens of millions before receiving executed agreements or proof of registration of easements, contrary to prudent conveyancing practice.

p. 3

Legal principles established

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  • A party seeking an injunction must establish a prima facie case with a right that appears to exist on the evidence; a party that acknowledges in its own plaint that it holds no easement cannot claim entitlement to continue construction
  • A purchaser or grantee must investigate title before conveyance; a registered court order of injunction constitutes constructive notice of encumbrances

Court orders

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  1. 1.Dismissal of the plaintiff's application dated 10 December 2014 with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules

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 Kendong Ranch Ltd & 3 others [2015] KEELC 628 (KLR)", Case Analysis (2015). ELC Case of 2014 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/628/eng@2015-02-19

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