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ELCDismissedELC Suit (Kisumu) – plaint dated 28th September 2016 (number not stated in judgment)· [2018] KEELC 3533 (KLR)

George Ngwena Obonyo & another v Kenya Electricity Transmission Company Limited [2018] KEELC 3533 (KLR)

Environment and Land Court
2 May 2018
1,040 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's land court allowed a 33-year-old trespass claim over power lines to proceed because the structures are still on the land, making the trespass 'continuing'.

What this practically means

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Executive summary

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Kenya Electricity Transmission Company Limited (Ketraco), the Defendant, applied by notice of motion dated 14th February 2017 for the striking out or dismissal of a trespass suit filed by George Ngwena Obonyo and Peter Ochieng Opiyo, the Plaintiffs, concerning electricity transmission poles and power lines allegedly erected on their land parcels in Kisumu in 1983. Ketraco argued that the suit was scandalous, frivolous and vexatious; that it disclosed no reasonable cause of action; that it was statute-barred under Section 7 of the Limitation of Actions Act since the cause of action arose 33 years before filing; and that Ketraco, incorporated on 2nd December 2008, was non-suited for an act of 1983. It also asserted its surveyors found no transmission lines traversing the Plaintiffs' parcels. The Plaintiffs opposed, arguing through counsel that the trespass was continuing because the poles remained on the land, relying on Peter Mwangi Kabui v Rural Electrification Authority, and that under Order 1 Rule 9 a suit should not be defeated by misjoinder. The court framed four issues, including limitation, non-suit, disclosure of cause of action and costs. It found the claim one of continuing trespass since the poles and power lines were still on the land, so neither limitation nor the Defendant's late incorporation defeated the claim. The notice of motion dated 14th February 2017 was dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether the suit is statute barred under the Limitation of Actions Act

Holding

No – the claim is based on a continuing trespass since the poles and power lines remain on the land, so limitation does not bar the suit.

Reasoning

Although the ordinary tort limitation period is three years under Section 4 of the Limitation of Actions Act, the Plaintiffs' case is that the power lines erected in 1983 were still on the land when the suit was filed. Following Peter Mwangi Kabui v Rural Electrification Authority, the court held the continued presence of the poles makes the trespass continuous, defeating the limitation objection.

p. 2
02

Whether the Defendant, incorporated in 2008, is non-suited for a trespass alleged in 1983

Holding

The Defendant is not non-suited because the trespass alleged is continuing to date.

Reasoning

Ketraco argued it was incorporated on 2nd December 2008 and could not be liable for a 1983 act. The court, having found the claim is one of continuing trespass, held this ground has no basis since the trespass alleged continues to date, so the Defendant as owner of the poles and lines can be answerable.

p. 2
03

Whether the suit discloses a reasonable cause of action

Holding

The application to strike out was dismissed, implying the suit was not found to be frivolous or to lack a cause of action.

Reasoning

The court considered the pleadings, affidavit evidence and submissions. Though the Plaintiffs' pleadings were unclear in places, their case that electricity power lines were erected in 1983 and remained on the land disclosed a continuing trespass claim, so the suit could not be struck out as frivolous, vexatious or an abuse of process.

p. 2

Legal principles established

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  • A claim founded on continuing trespass is not defeated by limitation where the trespassory structures remain on the land.

Court orders

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  1. 1.The Defendant's notice of motion dated 14th February 2017 is dismissed.
  2. 2.The Defendant to pay the Plaintiffs' costs of the application.

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions Act, Chapter 22 of Laws of KenyaSection 4
  • Civil Procedure RulesOrder 1 Rule 9

Cases cited (4)

  • Haron Onyancha v National Police Service Commission & Another
    [2017] eKLR
  • Bhundia Builders and Erectors v Ima Agencies Limited
    [2014] eKLR
  • John Michael Wanjau v Municipal Council of Eldoret
    [2013] eKLR
  • Peter Mwangi Kabui v Rural Electrification Authority
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land-based trespass claim (not expressly cited in judgment)

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, "George Ngwena Obonyo & another v Kenya Electricity Transmission Company Limited [2018] KEELC 3533 (KLR)", Case Analysis (2018). ELC Suit (Kisumu) – plaint dated 28th September 2016 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3533/eng@2018-05-02

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