Kenya Power & Lighting Co. Ltd v Kipevu Inland Container EPZ Ltd [2018] KEELC 3404 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that power line wayleaves override land titles, and ordered an excavating company to restore the protected corridor.
What this practically means
#Executive summary
#Key legal issues
#Existence of an easement/wayleave as an overriding interest
The plaintiff proved a wayleave trace for the 33KV and 132KV lines across the suit property, subsisting since 1998, binding on the defendant notwithstanding its lease and title.
Section 28 of the Land Registration Act declares electric supply lines erected under statutory powers to be overriding interests not requiring noting on the register, and Section 173(1) of the Land Act provides for public rights of way as wayleaves. The plaintiff applied for and was granted the wayleave, and the lines have run across the property since 1998. The defendant, as lessee, took subject to these overriding interests, so its registered/leasehold rights were defeated by operation of law.
Breach of the wayleave and entitlement to mandatory and permanent injunctions
The defendant breached the easement by excavating and constructing on the wayleave, endangering the pylons, and was restrained and ordered to restore the wayleave.
Photographic exhibits showed the extent and depth of the excavations and the exposed, isolated pylons. The defendant did not deny the allegations and had itself sought permission to work near the pylons, which the plaintiff refused. That the pylons had not collapsed was 'a cause of grace', not an endorsement of the defendant's actions; preventive action was warranted to avert danger to the plaintiff's infrastructure and the public.
Burden of proof at formal proof
The plaintiff's burden of proof was unchanged by the defendant's failure to file a defence or call evidence.
Relying on Karugi & Another v Kabiya and Charterhouse Bank Ltd v Frank N. Kamau, the court held that a plaintiff must still prove its case on a balance of probabilities even where the suit proceeds uncontroverted at formal proof. The plaintiff's uncontroverted evidence, including PW1's testimony and documents (P. Exhibits 1-13), discharged that burden, entitling it to judgment as prayed.
Legal principles established
#- Registered land is subject to overriding interests, including electric supply lines erected under powers conferred by written law, even where not noted on the register.
- The rights of a registered proprietor can be defeated by operation of law by overriding statutory interests such as wayleaves.
- Where a case proceeds by formal proof, the burden on the plaintiff to prove its case on a balance of probabilities is not lessened by the defendant's non-participation.
- A lessee in possession of land subject to a public right of way or wayleave has a duty to safeguard that wayleave.
Court orders
#- 1.Judgment entered for the plaintiff against the defendant as prayed in the plaint
- 2.A permanent injunction restraining the defendant, its servants and agents from further excavating, developing, constructing or interfering with the land forming the wayleave trace measuring twenty (20) metres from the pylons of KV 132 and KV 33 across Plot No. MN/VI/3842/2
- 3.A mandatory order compelling the defendant, its servants and agents to restore the land forming the wayleave trace to the compact state it was in prior to the excavations complained of
- 4.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (art. 162(2)(b) Constitution); suit commenced by plaint dated 10th June 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Co. Ltd v Kipevu Inland Container EPZ Ltd [2018] KEELC 3404 (KLR)", Case Analysis (2018). ELC No. 178 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3404/eng@2018-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.