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ELCOtherELC Case (Muranga), filed 11th October 2013· [2016] KEELC 140 (KLR)

Peter Mwangi Kabui v Rural Electrification Authority [2016] KEELC 140 (KLR)

High Court of Kenya, Environment and Land Court
25 November 2016
BOB.N. Olao
1,662 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyans can sue for power lines installed on their land years ago, because continuous trespass restarts the legal clock every day it continues.

What this practically means

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Executive summary

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The plaintiff sued the Rural Electrification Authority claiming special damages of Kshs 2,305,382 for 605 trees cut down in October 2009, a permanent injunction against trespass, a mandatory injunction to remove a high voltage line from six suit plots, general damages, costs and interest. He pleaded that the defendant's servants entered without consent, destroyed his trees and installed the line, and that he continues to suffer loss from a continuing trespass. The defendant denied trespass, pleaded wayleave consent, and asserted the suit was barred by the Limitation of Actions Act, filing a preliminary objection on 12th November 2014 that the suit was misconceived, incompetent and statute barred under Section 4. Counsel for the defendant also urged, relying on the court's own decision in Alice Mweru Ngai, that the dispute belonged to the Energy Regulation Commission under the Energy Act, although that ground was not in the notice of objection. The court applied the Mukisa Biscuit test that a preliminary objection must be a pure point of law on assumed pleaded facts. It held the trespass was a continuing one, giving a fresh cause of action from day to day, so the suit was not statute barred. It distinguished Alice Mweru Ngai because whether the plaintiff granted wayleave consent was a factual issue for trial, not a pure point of law. The preliminary objection was dismissed with costs to the plaintiff, and the suit proceeds to trial.

Key legal issues

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01

Limitation of actions in tort (trespass)

Holding

The suit is not statute barred because the trespass alleged is a continuing one; a new cause of action arises day to day while the defendant remains on the land

Reasoning

Section 4(2) of the Limitation of Actions Act bars tort actions brought after three years. The cause of action arose in October 2009 and the suit was filed on 11th October 2013, facially outside three years. However, the plaintiff pleaded continuing trespass - the high voltage line remains on the land and he is prevented from growing crops under it. Following textbook definitions, every continuance of a trespass is a fresh trespass giving a new cause of action, so the claim remains alive.

p. 3
02

Whether the court should decline jurisdiction in favour of the Energy Regulation Commission under the Energy Act

Holding

The objection fails because whether the plaintiff granted wayleave consent is a factual matter to be determined at trial, so it is not a pure point of law suitable for a preliminary objection

Reasoning

The defendant relied on the court's earlier decision in Alice Mweru Ngai, where jurisdiction was declined because the plaintiff there had assented to the line and disputed only the quantum of compensation. That case was distinguished: here the plaintiff pleaded entry without consent and the defendant pleaded wayleave consent was granted. Whether consent was granted requires evidence; a preliminary objection cannot rest on facts requiring ascertainment. The objection was therefore not well founded.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts have to be ascertained or judicial discretion exercised
  • A continuing trespass gives rise to a fresh cause of action from day to day for as long as the trespass continues, so a suit founded on it is not statute barred
  • Parties are bound by their pleadings and the court pronounces judgment only on issues arising from them unless canvassed by the parties

Court orders

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  1. 1.The defendant's Preliminary Objection filed on 12th November 2014 is dismissed
  2. 2.Costs of the Preliminary Objection to the plaintiff

Authorities

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Legislation

  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSection 4(1)(e)
  • Energy ActSection 108

Cases cited (3)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    1969 E.A 896
  • Chumo arap Songok v David Keigo Rotich
    2006 eKLR
  • Alice Mweru Ngai v Kenya Power & Lighting Co. Ltd
    2015 eKLR (ELC Case No. 287 of 2014 Kerugoya)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; jurisdiction question raised under the Energy Act considered and resolved in favour of the Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Peter Mwangi Kabui v Rural Electrification Authority [2016] KEELC 140 (KLR)", Case Analysis (2016). ELC Case (Muranga), filed 11th October 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/140/eng@2016-11-25

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