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ELCDismissed(Notice of Motion dated 17th October, 2018)· [2019] KEELC 2941 (KLR)

John Musau Kilonzo & 135 others v Kenya Electricity Generating Company Ltd [2019] KEELC 2941 (KLR)

Environment and Land Court
14 June 2019
OAO.A. Angote
3,114 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to stop KenGen from using disputed Machakos land, because the residents waited too long and could point to no stronger legal right than KenGen's title deed.

What this practically means

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Executive summary

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The 136 Plaintiffs, residents of Kivaa in Masinga Constituency, Machakos County, moved the court by Notice of Motion dated 17th October, 2018 seeking a temporary injunction to maintain the status quo over land known as Machakos/Yatta/1, restraining the Defendant from wasting, constructing on, developing, alienating or interfering with the property pending trial, and seeking police enforcement of the order. They claimed to have occupied the land for over 40 years, that the area was declared an adjudication section in 1996, and that the Defendant irregularly acquired title in 2005 overlapping adjudicated areas without compensation. The Defendant, a government-majority company that took over Tana River Development Company Limited, produced Gazette Notices setting apart the land between 1966 and 1996 for the Kindaruma, Kamburu and Gitaru hydro-power stations, a boundary plan of 1996, and a Title Deed issued in 2005. It opposed the application on grounds of limitation under the Public Authorities Limitation Act, non-joinder and lack of a prima facie case. The court, applying Giella v Cassman Brown, Kenya Commercial Finance, Nguruman and Mrao, held the Plaintiffs had not established a prima facie case given the Defendant's registered title; that any claim lies in compensation/damages since the land generates power for the whole country; and that the suit, filed in 2018, is likely time-barred and caught by laches. The application was dismissed with no order as to costs, with compensation and limitation questions reserved for trial.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success

Holding

They did not, as the Defendant holds a 2005 Title Deed issued pursuant to Gazette Notices setting apart the suit land

Reasoning

The court accepted that the Defendant's predecessor obtained title following Gazette Notices setting apart Trust Land between 1966 and 1996, with the title issued in 2005 and the land depicted in boundary plan 179/102. Against that documentary evidence, the Plaintiffs' claim of encroachment and irregular acquisition did not disclose an apparently infringed right warranting an explanation from the Defendant.

p. 4
02

Whether the Plaintiffs would suffer irreparable injury

Holding

No; any claim is for compensation recoverable as damages

Reasoning

The suit land is used for generating electric power for the entire country. The court reasoned that both the repealed and current Constitutions permit compulsory acquisition of land for public purposes upon prompt payment of just compensation, so the Plaintiffs' proper remedy is an award of damages or compensation under the Constitution, the Land Act or the repealed Trust Land Act and Land Acquisition Act, not invalidation of the Defendant's title at the interlocutory stage.

p. 4
03

Whether the Plaintiffs' claim may be time barred or caught by laches

Holding

Likely; the suit filed in 2018 came more than twelve years after the 2005 title

Reasoning

Relying on Section 7 of the Limitation of Actions Act, the court noted an action to recover land must be filed within twelve years from when the right accrued. Since the boundary plan dates to 1996 and the title issued in 2005, the suit filed in 2018 is likely time barred, and the Plaintiffs did not raise the compensation issue within a reasonable period, exposing them to the doctrine of laches. The question is reserved for trial.

p. 4

Legal principles established

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  • The conditions for an interlocutory injunction are sequential; the second and third conditions are only considered if a prima facie case is established
  • Setting apart of Trust Land under the repealed Constitution and Trust Land Act could not be complete until prompt payment of full compensation where the setting apart extinguished any right in the land

Court orders

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  1. 1.Dismissed the Plaintiffs' Application dated 17th October, 2018
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya (repealed)Section 118(1)
  • Constitution of Kenya (repealed)Section 117(4)
  • Trust Land ActSection 13(2)
  • Limitation of Actions ActSection 7
  • Public Authorities Limitation ActSection 3
  • Land Act-
  • Land Acquisition Act (repealed)-
  • Civil Procedure RulesOrder 1 Rule 13 and 14

Cases cited (5)

  • Kenya Commercial Finance Co. Limited vs. Afraha Education Society
    (2001) 1 E.A 86
  • Giella vs. Cassman Brown and Co. Ltd
    1973 EA 360
  • Nguruman Ltd vs. Jan Bonde Nielsen
    (2014) eKLR
  • Mrao Ltd vs. First American Bank of Kenya Limited and 2 others
    (2003) KLR 125
  • Bahola Mkalindi Rhigho & 9 others vs. Michael Seth Kaseme & 2 others
    (2016) eKLR
Jurisdiction invoked
Civil Procedure Rules, interlocutory application in the main suit

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, "John Musau Kilonzo & 135 others v Kenya Electricity Generating Company Ltd [2019] KEELC 2941 (KLR)", Case Analysis (2019). (Notice of Motion dated 17th October, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2941/eng@2019-06-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.