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ELCAllowedELC No. 178 of 2010· [2018] KEELC 3404 (KLR)

Kenya Power & Lighting Co. Ltd v Kipevu Inland Container EPZ Ltd [2018] KEELC 3404 (KLR)

Environment and Land Court
7 May 2018
2,467 words in judgment
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The bottom line

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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

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Executive summary

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Kenya Power & Lighting Co. Ltd sued Kipevu Inland Container EPZ Ltd seeking a permanent injunction restraining excavation, development or interference with a 20-metre wayleave trace from 132KV and 33KV pylons crossing Plot No. MN/VI/3842/2, and a mandatory order restoring the wayleave. The plaintiff pleaded that it erected the lines in 1998 after obtaining approvals, serving strategic customers, and that the defendant's excavations had left the pylons isolated on islands of loose soil. The defendant entered appearance but never filed a defence; interlocutory judgment was entered on 8th September 2014 and the suit proceeded to formal proof on 12th October 2017, with PW1, an assistant wayleave officer, testifying and producing exhibits including photographs of the excavations. The defendant's advocates argued the interlocutory judgment was a nullity and that no case for a mandatory injunction had been made. The court held that the plaintiff's burden of proof was undiminished by the formal proof procedure (applying Karugi v Kabiya and Charterhouse Bank v Kamau), and that under Section 28 of the Land Registration Act electric supply lines erected under statutory powers are overriding interests, while the Land Act provides for wayleaves as public rights of way. The rights of a proprietor can be defeated by operation of law. The plaintiff proved the wayleave, its breach by the defendant, and the danger posed. The defendant's possession was subject to the wayleave and it had a duty to safeguard it; that the pylons had not collapsed was no endorsement. Judgment was entered for the plaintiff as prayed in the plaint, with costs, delivered at Mombasa on 7th May 2018 by C. Yano, J.

Key legal issues

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01

Existence of an easement/wayleave as an overriding interest

Holding

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.

Reasoning

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.

p. 3
02

Breach of the wayleave and entitlement to mandatory and permanent injunctions

Holding

The defendant breached the easement by excavating and constructing on the wayleave, endangering the pylons, and was restrained and ordered to restore the wayleave.

Reasoning

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.

p. 3
03

Burden of proof at formal proof

Holding

The plaintiff's burden of proof was unchanged by the defendant's failure to file a defence or call evidence.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Judgment entered for the plaintiff against the defendant as prayed in the plaint
  2. 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. 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. 4.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Evidence ActSections 107 and 109
  • Energy Act, 2006consent of property owners to power lines
  • Registration of Titles Act, Cap 281 (repealed)Section 23(1)
  • Registered Land Act, Cap 300 (repealed)Sections 28(a) and 30
  • Land Registration Act, 2012Sections 25(1), 26, 28 and 99
  • Land ActSections 136, 141(2), 143(2), 145 and 173(1)
  • Wayleaves Act, Cap 292 (repealed)
  • Electric Power Act, No. 1997 (repealed)

Cases cited (7)

  • Charter House Bank Ltd –vs- Frank N. Kamau
    [2016] eKLR
  • Kamau –vs- Kamau
    (1984) I KLR (E&L)
  • Kenya Power & Lighting Co. Ltd –vs- Mosiara Trading Company Ltd
    [2016] eKLR
  • Edward Saya Malovi Juma –vs- Kenya Electricity Transmission Co. Ltd
    [2015] eKLR
  • Edith Wangari Gitata –vs- Athi Water Service Board
    [2012] eKLR
  • Karugi & Another –vs- Kabiya & 3 Others
    (1987) KLR 347
  • Charterhouse Bank Limited (Under Statutory Management) –vs- Frank N. Kamau
    [2016] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.