Farid Mohamed Al-Maary v Kenya Power & Lightning Co. Ltd [2018] KEELC 4143 (KLR)
The bottom line
#A registered wayleave agreement letting Kenya Power keep its transformer on private land binds every future owner of that land, even if they bought it later.
What this practically means
#Executive summary
#Key legal issues
#Whether the way leaves agreement created a binding interest in land
It was an easement under Section 2 of the Land Act, 2012
The court applied the statutory definition of an easement as a non-possessory interest allowing the holder to use another's land to a particular extent, and rejected the plaintiff's characterization of the agreement as a mere restrictive agreement.
Whether the easement binds the plaintiff as a subsequent purchaser
Yes, as an overriding interest under Section 28(i) of the Land Registration Act, 2012, coupled with deemed notice under Section 29
Electric supply lines erected in pursuance of powers conferred by written law are overriding interests not needing registration notation; a purchaser is deemed to have notice of entries relating to the land, and was obliged to carry out due diligence including inspection of the title before purchase.
Whether the entries on the title contained the way leaves agreement
Yes; the encumbrances section showed entries starting at No. 61 with earlier entries missing, which the court found concealed the registered way leaves agreement
The court noted gaps in the encumbrances section of the copies of title and accepted the defence submission that the omitted entries contained the registered agreement, which was therefore binding and irrevocable.
Whether the defendant must pay rent/mesne profits
No; the transformer serves the premises and the plaintiff failed to prove loss
Evidence showed the transformer was mounted to supply the premises, had been there for years, and the plaintiff produced no proof of explosions, fires or elevated insurance premiums, so the claim failed on a balance of probabilities.
Legal principles established
#- A way leaves agreement for electric supply installations, once registered, constitutes an easement and an overriding interest binding subsequent proprietors
- A registered way leaves agreement is irrevocable and binds successors in title who are deemed to have notice of register entries
Court orders
#- 1.Dismissal of the plaintiff's suit with costs to the Defendant
- 2.Certified copies of proceedings and judgment to issue upon payment
- Jurisdiction invoked
- Original civil suit within the jurisdiction of the Environment and Land Court (land dispute over Plot Mombasa/Block XX/83 & 84); specific constitutional provision not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Farid Mohamed Al-Maary v Kenya Power & Lightning Co. Ltd [2018] KEELC 4143 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4143/eng@2018-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.