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ELCAllowed· [2017] KEELC 3635 (KLR)

Eastern Produce Kenya Limited v Chepsire (Savani) Farmers Co-operative Society Limited [2017] KEELC 3635 (KLR)

High Court of Kenya
3 February 2017
AOAntony Ombwayo
3,610 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Eastern Produce Kenya Ltd, the plaintiff, sued Chepsire (Savani) Farmers' Co-operative Society Ltd, the defendant, claiming that under a Grant of Easement dated 19th December 1979 made between the defendant and the plaintiff, then known as East African Coffee Plantations Limited, the defendant as beneficial owner granted the plaintiff rights over L.R. No. 4075, including the right to the free and uninterrupted flow of water through a water furrow feeding the plaintiff's hydro-electric site. The plaintiff alleged that on or about 9th January 2016 the defendant and/or its agents obstructed and closed the furrow, planted seedlings on it and damaged the fence, depriving the plaintiff and the neighbouring community of water and forcing reliance on costly alternative power. Together with the plaint, the plaintiff filed a Notice of Motion dated 15th January 2016 seeking an interlocutory injunction restraining continuation of the obstruction pending trial. The defendant's chairman denied ownership of L.R. No. 4075, asserted the land had been subdivided into individual titles, claimed the title was surrendered to the Government in 1993, and argued the orders could not be enforced and that the suit was filed in the wrong venue. The court applied the Giella v Cassman Brown principles. It found the plaintiff established a prima facie case, holding that the easement rights were not extinguished by the surrender and subdivision of the land. It found irreparable harm not compensable in damages, since the plaintiff's right to water is constitutional, and held that the balance of convenience favoured granting the injunction because the whole community depended on the water supply. The court allowed the application and granted the temporary injunction.

Key legal issues

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01

Prima facie case

Holding

The plaintiff established a prima facie case as registered grantee of the easement over L.R. No. 4075, the defendant having been the registered lessee.

Reasoning

The court applied the Giella v Cassman Brown test. It found the plaintiff registered proprietor of L.R. 5413/2 and the defendant registered lessee of L.R. No. 4075, over which the 1979 Grant of Easement conferred rights including free and uninterrupted flow of water through the furrow. Any subdivision and surrender of the land did not extinguish those easement rights, which run with the land.

p. 5
02

Irreparable harm

Holding

The plaintiff demonstrated irreparable harm not compensable in damages because the constitutional right to water of the plaintiff and the surrounding community was at stake.

Reasoning

The court reasoned that obstruction of the furrow disabled the plaintiff's hydro site, cutting off water pumped to factory and management villages, schools and a dispensary. Damage from deprivation of such a right cannot be adequately compensated by damages, satisfying the second limb of the Giella test.

p. 5
03

Balance of convenience

Holding

The balance of convenience tilts in favour of granting the injunction because the plaintiff and the whole community would suffer greater inconvenience if it were withheld.

Reasoning

The court weighed the comparative inconvenience: without the injunction the plaintiff would suffer reduced electric power and water supply affecting the entire community, whereas the defendant would not be inconvenienced by the injunction, the plaintiff having heavily invested on the ground on the strength of the registered easement.

p. 5

Legal principles established

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  • An easement registered over land is not extinguished by subsequent surrender and subdivision of the servient tenement; the rights of the dominant tenant continue to run with the land.
  • A right to water that is constitutional in character cannot be adequately compensated in damages, supporting the grant of an injunction.

Court orders

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  1. 1.The plaintiff's Notice of Motion dated and filed on 15th January 2016 is allowed, granting the temporary injunction restraining the defendant from obstructing the free flow of water through the furrow pending hearing and determination of the suit

Authorities

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Cases cited (1)

  • Giella Vs Cassman Brown & Co. Ltd
Jurisdiction invoked
Not expressly stated; suit filed in the High Court seeking declaration and injunctions in respect of a grant of easement over land in Kericho/Nandi Hills

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Eastern Produce Kenya Limited v Chepsire (Savani) Farmers Co-operative Society Limited [2017] KEELC 3635 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3635/eng@2017-02-03

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