Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition (Notice of Motion dated 22nd January, 2018)· [2018] KEELC 1478 (KLR)

Golden Lane Limited v Kenya Electricity Transmission Company Limited & another [2018] KEELC 1478 (KLR)

Environment and Land Court
9 October 2018
2,028 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kajiado court dismissed a landowner's bid to block KETRACO's transmission line works because a signed easement agreement permitted entry and compensation had already been paid.

What this practically means

#

Executive summary

#
The Petitioner, proprietor of land parcel Kajiado/Kitengela/6686, moved the court by Notice of Motion dated 22nd January 2018 under Order 40 rules 1-4 of the Civil Procedure Rules seeking a temporary injunction pending the hearing of its Petition. It alleged that on 12th January 2018 the 2nd Respondent entered the fenced farm with seven armed men, cut down three trees without permission or notice, traumatizing the Farm Manager, and that the 1st Respondent's administrative action and intrusion violated its constitutional rights to privacy, quiet possession and fair administrative action. The 1st Respondent denied authorizing the 2nd Respondent and relied on an easement agreement executed on 14th July 2017 for its 400 KVA Mombasa-Nairobi transmission line, under which it compensated the Petitioner Kshs. 24,960,000; clause 4 barred trees over 12 feet within the trace and clause 7 permitted felling of obstructing trees after notice, with disputes referable to arbitration under clause 11. Applying the Giella v Cassman Brown principles as elaborated in Nguruman Ltd v Jan Bonde Nielsen, the court found no prima facie case: the easement agreement was unchallenged, entry under it was lawful, and any grievance lay in arbitration or against the 2nd Respondent before the authorities. The alleged injuries were speculative and damages adequate; the balance of convenience did not favour the Petitioner. The application was dismissed with costs on 9th October 2018.

Key legal issues

#
01

Whether the Petitioner established a prima facie case with a probability of success

Holding

No. The Petitioner was the registered proprietor but had executed an unchallenged easement agreement permitting entry and felling of trees within the trace upon notice; lack of notice by the 2nd Respondent could not amount to trespass by the 1st Respondent

Reasoning

The court found it undisputed that the Petitioner owned the suit land and had signed an easement agreement with the 1st Respondent on 14th July 2017, which it never challenged. The agreement allowed the grantee to fell trees obstructing the line after notice, and disputes were to be referred to arbitration. Given the agreement, the alleged lack of notice could not constitute trespass by the 1st Respondent, and the complaint against the 2nd Respondent should have been reported to authorities for prosecution.

p. 2
02

Whether the Petitioner would suffer irreparable loss not compensable by damages

Holding

No. The Petitioner was already compensated Kshs. 24,960,000 under the easement agreement and its alleged injuries were speculative

Reasoning

Having been compensated for the limited loss of use of the land, and given the easement agreement expressly permitted the 1st Respondent to enter and cut trees within the trace, the Petitioner could not demonstrate actual, substantial and demonstrable injury. Applying Nguruman Ltd v Jan Bonde Nielsen, speculative injury or unfounded fear does not suffice; the burden was on the applicant to demonstrate the nature and extent of the injury.

p. 3
03

Balance of convenience

Holding

The balance of convenience did not tilt in favour of the Petitioner

Reasoning

On the third Giella principle, the court was not in doubt that the balance of convenience favoured the Respondents, given the subsisting easement agreement, the completed and energized transmission line, and the compensation already paid. This third limb was determined briefly on the evidence presented by the parties.

p. 3

Legal principles established

#
  • The three Giella v Cassman Brown principles govern the grant of temporary injunctions: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience where in doubt
  • Where an easement agreement contains an arbitration clause, the parties must first resort to arbitration before lodging a complaint in court

Court orders

#
  1. 1.The application dated the 22nd January, 2018 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2, 3 & 4

Cases cited (3)

  • Jamlick Gichuhi Mwangi Vs Kenya Commercial Bank Ltd & Anor
    (2016) eKLR
  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; application brought pursuant to Order 40 rules 1, 2, 3 & 4 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Golden Lane Limited v Kenya Electricity Transmission Company Limited & another [2018] KEELC 1478 (KLR)", Case Analysis (2018). Petition (Notice of Motion dated 22nd January, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1478/eng@2018-10-09

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