Benjamin Kariamburi Mwangi & 2 others v Kenya Elecricity Transmission Company & another [2018] KEELC 2783 (KLR)
The bottom line
#A Nyahururu court refused to stop power transmission lines on private farmland because the landowners had already signed an easement agreement and been paid compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case with a probability of success
No. The Applicants consented to the easement/way leave, signed the easement agreement of 23rd February 2015 and an indemnity, were compensated, and the Respondents followed the statutory way leave process under the Land Act; their entry and construction were lawful
The court found the 1st Respondent followed the procedure laid down in the Land Act in acquiring the way leave, and that the 1st and 2nd Applicants had voluntarily signed the easement agreement and indemnity and had been paid Kshs 24,688,778.00 in compensation. A party cannot run away from the terms of its agreement, and no duress was suggested. Accordingly no apparently infringed right calling for rebuttal was established.
Whether the Applicants would suffer irreparable harm not compensable in damages
No. The dispute is over compensation; damages already paid, and remaining compensation is ascertainable after the stringing exercise, so compensation is an adequate remedy
The Respondents had already paid a total of Kshs 24,688,778/= for damage caused, and what remained was compensation for anticipated damage from the stringing exercise, which the Respondents did not deny. Compensation for damages was therefore an available remedy, defeating irreparable-harm relief.
Where the balance of convenience lies
In favour of the Respondents and the public: the transmission towers serve great national and public interest, and an injunction would cause heavy losses to the Respondents and the tax payer
The court found the electricity transmission towers are intended for the common good of the public and are of great national and public interest. Stoppage would cost the 1st Respondent about Kshs 500,000 per day under the EPC contract, and non-completion by 31st July 2018 would attract Kshs 33,000,000 per day payable to Lake Turkana Wind Power. Public interest prevailed over private interest.
Whether the dispute should be referred to arbitration under the easement agreement
Raised by the Respondents under clause 11 of the agreement and section 7 of the Arbitration Act; the court disposed of the application on the Giella principles without ordering reference to arbitration
The Respondents submitted that clause 11 of the easement agreement required disputes to be settled by arbitration and that the court's jurisdiction was limited under section 7 of the Arbitration Act. The Applicants did not seek section 7 intervention. The court's determination rests on the injunction principles rather than on an arbitration ruling, so this is obiter.
Legal principles established
#- The sequence of the Giella v Cassman Brown principles is sequential; the second condition is only addressed if the first (prima facie case) is satisfied
- A court has a duty to uphold and enforce contracts entered into by parties and cannot rewrite their agreements
- A prima facie case is a genuine and arguable case showing an apparently infringed right calling for rebuttal
Court orders
#- 1.Dismissal of the Applicants' Notice of Motion dated 11th May 2018
- 2.Costs of the application awarded to the Respondents
- 3.Interim orders (status quo) issued ex parte on 14th May 2018 set aside
- 4.Parties to comply with Order 11 within 21 days for the hearing of the main suit
- Jurisdiction invoked
- Articles 40, 64 and 159(d) of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Kariamburi Mwangi & 2 others v Kenya Elecricity Transmission Company & another [2018] KEELC 2783 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 11th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2783/eng@2018-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.