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ELCDismissed· [2017] KEELC 27 (KLR)

Lawangiro Camel Farms Ltd v Kenya Electricity Transmission (Environment and Land Case 432 of 2017) [2017] KEELC 27 (KLR)

Environment and Land Court
20 November 2017
MOM. C. Oundo
2,879 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a tenant leasing land cannot claim compensation or block a national power line project - only the landowner can.

What this practically means

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Executive summary

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The Plaintiff, a livestock business rearing about 3,000 cattle, 1,000 goats and 500 camels as a 15-year lessee of 11,000 acres in Mutara Ranch (LR No 10069, approximately 63,220 acres) from the Agricultural Development Co-operation (ADC), moved the Court by Notice of Motion dated 26th May 2017 seeking an interim injunction to restrain the Defendant, who was constructing an electricity transmission line from Loiyangalani in Marsabit County to Suswa in Narok to carry power from the Lake Turkana Wind farm, from trespassing on, damaging or interfering with the leased land pending the hearing of the suit. The Defendant admitted the construction but asserted it had obtained the permission of ADC, the registered proprietor, relying on Section 148(2) of the Land Act to argue that wayleave compensation is payable to a public body proprietor only upon demonstrable interference with its use of the land, not to third parties. The court framed two issues: entitlement to compensation and whether an interim injunction should issue. It held that compensation can only be agreed with the registered proprietor, ADC, and not with the Applicant as licensee. Applying Giella v Cassman Brown as elaborated in RJR Macdonald, it found the Respondent was not a trespasser, that both parties stood as licensees, and that the Applicant had not established a prima facie case with probability of success. Weighing public interest in the nationally important project against private interests, and finding damages assessable and no evidence of danger to the property, the court dismissed the Notice of Motion with costs to the Defendant.

Key legal issues

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01

Whether the Applicant (lessee) is entitled to compensation from the Respondent under the Land Act

Holding

No compensation lies; under Section 148(2) of the Land Act wayleave compensation is paid to the registered public-body proprietor, here ADC, not to third parties

Reasoning

The court applied Section 148(2) of the Land Act, which prohibits payment of wayleave compensation to a public body absent demonstrable interference with its use of the land. Since compensation agreements are entered with the registered proprietor, and ADC granted the right of way, the Applicant as licensee/lessee has no claim against the Respondent. Any grievance lay with ADC, the proprietor.

p. 5
02

Whether an interim injunction should issue under the Giella v Cassman Brown principles

Holding

No. The Applicant failed to establish a prima facie case with probability of success; the Respondent entered with the landowner's permission under Section 46 of the Energy Act and is not a trespasser, and public interest in the nationally important transmission project outweighs the private interest

Reasoning

The court found the lease and the Respondent's permission from ADC undisputed, placing both parties on the same footing as licensees. No evidence showed the property in danger of being wasted, damaged or alienated as Order 40 rule 1 requires. The balance of convenience favoured the Respondent given the national economic value of the project and the heavy losses an injunction would cause.

p. 6

Legal principles established

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  • Compensation relating to a wayleave or communal right of way is payable to the registered proprietor (public body) only upon demonstrable interference with its use of the land, not to third-party licensees
  • A party granted permission by the registered proprietor of land to enter and construct is not a trespasser, and both that party and a lessee in occupation stand in like position as licensees

Court orders

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  1. 1.The order of injunction sought is declined
  2. 2.The Plaintiff's Notice of Motion dated 26th May 2017 is dismissed with costs to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 40 Rule 1(a) and Rule 4
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land ActSections 107-119
  • Land ActSection 148(2)
  • Energy ActSection 46
  • Constitution of KenyaArticle 40(3)

Cases cited (5)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Mrao versus First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • E. Kamau & Another vs. National Bank of Kenya Ltd
    (2009)
  • RJR Macdonald vs Canada (Attorney General)
    [1994] 1 SCR 311
  • Patrick Simiyu Khaemba v Kenya Electricity Transmission Co. Ltd (KETRACO) & another
    [2014] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Court under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1 and Order 51 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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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, "Lawangiro Camel Farms Ltd v Kenya Electricity Transmission (Environment and Land Case 432 of 2017) [2017] KEELC 27 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/27/eng@2017-11-20

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