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ELCPartially Allowed· [2019] KEELC 113 (KLR)

Kenya Elecricity Transmission Company Limited v Kibotu Limited [2019] KEELC 113 (KLR)

Environment and Land Court
18 December 2019
5,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Environment and Land Court ruling at Eldoret by M. A. Odeny J decided two interlocutory applications: the plaintiff's application dated 18th September 2019 for a temporary injunction restraining the defendant from interfering with construction of the Olkaria-Lessos-Kisumu 400KV transmission line across the defendant's parcels SONGOR/SONGOR BLOCK 2/12 & 18, and the defendant's application dated 29th October 2019 seeking conservatory orders, discharge of the ex parte injunction, and an order that the pleaded compensation of Kshs. 5,159,448.00 be deposited in a joint interest-earning account. The defendant, the registered owner of over 500 acres, alleged the plaintiff entered after the injunction, slashed sugarcane, dug trenches and created roads without payment of compensation, and sought discharge on grounds of misrepresentation and non-disclosure. The plaintiff relied on the wayleave regime under the Land Act and section 185 of the Energy Act 2019. The court held that no real danger of prejudice was demonstrated warranting discharge - the photographs could not be dated relative to the injunction - and that no material non-disclosure was established. It held that what was undertaken was a wayleave trace under sections 143 and 145 of the Land Act rather than compulsory acquisition, with compensation limited by section 148, and that damages under the defendant's counterclaim would be an adequate remedy. The injunction was confirmed subject to strict compliance, and the plaintiff was ordered to deposit Kshs. 5,159,448.00 in a joint interest-earning account within 30 days, failing which the order lapses; parties to comply with Order 11 within 30 days.

Key legal issues

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01

Whether to discharge the ex parte injunction of 18th September 2019

Holding

Discharge refused; injunction confirmed pending trial, subject to strict compliance and a conditional compensation deposit

Reasoning

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.

p. 7
02

Nature of the plaintiff's rights over the land - wayleave versus compulsory acquisition

Holding

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

Reasoning

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.

p. 6
03

Whether the plaintiff entered the land and committed waste under cover of the injunction

Holding

Not established on the evidence; the photographs were undated relative to the injunction

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The order of injunction granted on 18th September 2019 remains in place pending the hearing and determination of the suit
  2. 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. 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. 4.Parties to comply with Order 11 within 30 days

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40
  • Civil Procedure Rules 2010Order 10 Rule 7
  • Civil Procedure Rules 2010Order 40 Rule 1
  • Civil Procedure Rules 2010Order 40 Rule 6
  • Civil Procedure Rules 2010Order 11
  • Energy Act 2019Section 185
  • Land ActSections 143, 145, 148, 149

Cases cited (15)

  • Giella v Cassman Brown
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd
    (2003) eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & ano.
    [2019] eKLR
  • Kenleb Cons Ltd v New Gatitu Service Station Ltd another
    (1990) eKLR
  • Ochola Kamili Holding Limited v Guardian Bank Limited
    (2018) eKLR
  • Shepherd Homes Limited v Sandham
    (1971) 1 CH 34
  • Nation Media Group & 2 others v John Harun Mwau
    (2014) eKLR
  • Kamau v Kamau
    KLR EA 105
  • Everlyne College of Design v Director of Children's Department & AG
    Constitutional Petition No.228 of 2013
  • National Commercial Bank Ltd v Olint Corporation
    2009 IV/r 1405
  • St Patricks Hill School Ltd v Bank of Africa Kenya Ltd
    [2018] eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    [2015] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    eKLR
Jurisdiction invoked
Not expressly stated; proceedings under the Civil Procedure Rules 2010 (Order 40) and the Land Act (wayleave provisions)

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, "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.