Kenya Elecricity Transmission Company Limited v Kibotu Limited [2019] KEELC 113 (KLR)
The bottom line
#A Kenyan court allowed a power company to keep building a transmission line across private land, but only after depositing full compensation money.
What this practically means
#Executive summary
#Key legal issues
#Whether to discharge the ex parte injunction of 18th September 2019
Discharge refused; injunction confirmed pending trial, subject to strict compliance and a conditional compensation deposit
Order 10 Rule 7 entitles a dissatisfied party to seek discharge, but reasons must be given. The defendant failed to demonstrate a prima facie case or real danger of prejudice: the photographs annexed could not be shown to postdate the injunction, and no specific material non-disclosure was identified. Damages under the counterclaim would be an adequate remedy. The court nonetheless conditioned confirmation on the plaintiff depositing the pleaded compensation into a joint interest-earning account within 30 days.
Nature of the plaintiff's rights over the land - wayleave versus compulsory acquisition
The project is a wayleave under sections 143 and 145 of the Land Act, not compulsory acquisition; compensation is limited to loss of use and damage under section 148
The court distinguished compulsory acquisition from a wayleave trace, noting the National Land Commission advertised acquisition of wayleaves for the Olkaria-Lessos-Kisumu 400KV transmission line. A wayleave permits entry to execute and maintain works with restrictions on structures and tree/crop height, with compensation payable promptly under section 148, and recourse to court under section 149 for disputes.
Whether the plaintiff entered the land and committed waste under cover of the injunction
Not established on the evidence; the photographs were undated relative to the injunction
The court could not verify from the annexed photographic evidence whether the alleged destruction - slashing sugarcane and digging trenches - occurred before or after the injunction was granted, so the defendant's claim of post-injunction waste was not proved at the interlocutory stage.
Legal principles established
#- An applicant for discharge of an injunction must give reasons why the order should be discharged, varied or set aside
- What is undertaken for a power transmission line is a wayleave under the Land Act, not compulsory acquisition, and compensation for a wayleave is limited and governed by section 148 of the Land Act
- Interlocutory injunctions preserve the substratum of the suit; where harm is compensable in damages the injunction should stand and damages pursued via counterclaim
Court orders
#- 1.The order of injunction granted on 18th September 2019 remains in place pending the hearing and determination of the suit
- 2.The plaintiff to comply strictly with the order of injunction and not engage in acts that would degrade the suit land pending the hearing and determination of the suit
- 3.The plaintiff to deposit Kshs. 5,159,448.00 in a joint interest earning account in the names of the advocates of the parties within 30 days, failing which the order lapses
- 4.Parties to comply with Order 11 within 30 days
- Jurisdiction invoked
- Not expressly stated; proceedings under the Civil Procedure Rules 2010 (Order 40) and the Land Act (wayleave provisions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Elecricity Transmission Company Limited v Kibotu Limited [2019] KEELC 113 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/113/eng@2019-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.