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ELCDismissedNot stated in judgment· [2018] KEELC 4143 (KLR)

Farid Mohamed Al-Maary v Kenya Power & Lightning Co. Ltd [2018] KEELC 4143 (KLR)

Environment and Land Court
13 February 2018
1,487 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, purchaser of Mombasa/Block XX/83 & 84, sued the defendant power utility for mesne profits for a ground-floor shop occupied by the defendant's transformer since 26 June 2002, seeking a declaration of liability, an assessment of mesne profits (valued at Kshs.40,000/= per month), payment with interest, and costs. The defence relied on a way leaves agreement dated 15 March 1978 between the defendant and the previous owner, Pan Africa Insurance Company, under which a room was provided for a transformer rent-free, contending the agreement was binding on subsequent owners and irrevocable. The court identified five issues: existence of the consent, its binding effect on successors, its irrevocability, liability for rent/mesne profits, and costs. Holding the way leaves agreement to be an easement under Section 2 of the Land Act, 2012, and an overriding interest under Section 28(i) of the Land Registration Act, 2012, the court found the plaintiff had been under a duty to inspect the title and that gaps in the encumbrances entries concealed the registered agreement. The agreement was found registered and irrevocable, and the plaintiff failed to prove alleged risks or increased insurance premiums. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether the way leaves agreement created a binding interest in land

Holding

It was an easement under Section 2 of the Land Act, 2012

Reasoning

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.

p. 2
02

Whether the easement binds the plaintiff as a subsequent purchaser

Holding

Yes, as an overriding interest under Section 28(i) of the Land Registration Act, 2012, coupled with deemed notice under Section 29

Reasoning

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.

p. 3
03

Whether the entries on the title contained the way leaves agreement

Holding

Yes; the encumbrances section showed entries starting at No. 61 with earlier entries missing, which the court found concealed the registered way leaves agreement

Reasoning

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.

p. 3
04

Whether the defendant must pay rent/mesne profits

Holding

No; the transformer serves the premises and the plaintiff failed to prove loss

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Dismissal of the plaintiff's suit with costs to the Defendant
  2. 2.Certified copies of proceedings and judgment to issue upon payment

Authorities

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Legislation

  • Land ActSection 2
  • Land Registration ActSection 28
  • Land Registration ActSection 29
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

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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, "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.