George Ngwena Obonyo & another v Kenya Electricity Transmission Company Limited [2018] KEELC 3533 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is statute barred under the Limitation of Actions Act
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.
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.
Whether the Defendant, incorporated in 2008, is non-suited for a trespass alleged in 1983
The Defendant is not non-suited because the trespass alleged is continuing to date.
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.
Whether the suit discloses a reasonable cause of action
The application to strike out was dismissed, implying the suit was not found to be frivolous or to lack a cause of action.
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.
Legal principles established
#- A claim founded on continuing trespass is not defeated by limitation where the trespassory structures remain on the land.
Court orders
#- 1.The Defendant's notice of motion dated 14th February 2017 is dismissed.
- 2.The Defendant to pay the Plaintiffs' costs of the application.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a land-based trespass claim (not expressly cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.