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ELCDismissed· [2020] KEELC 851 (KLR)

Jared Okongo Manyibe & 2 others v Kenya Power & Lighting Company & another [2020] KEELC 851 (KLR)

Environment and Land Court
29 October 2020
2,758 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiffs, members and officials of Embakasi Youth Jua Kali Self Help Group, sued the Kenya Power & Lighting Company Limited (1st defendant) and the Nairobi City County Government (2nd defendant), seeking a permanent injunction against interference with their plots in Saika West Estate, Mowlem Ward, Embakasi, a declaration that they are the legal owners of L.R Nos. 209/9560, 9562, 9563 and 9564, and costs. Together with the plaint they moved by Notice of Motion dated 20th December 2018 for interlocutory injunctions restraining the defendants from entering, interfering with or demolishing their buildings, pending hearing of the application. They claimed allocation of the plots by the 2nd defendant's predecessor, occupation and development for 20 years, payment of land rent, and supply of electricity and water, in response to a notice from the 1st defendant threatening demolition of structures on a high voltage power line wayleave corridor. The 1st defendant replied that it acquired the wayleave in 1966 and that the plaintiffs had encroached on the corridor with 220KV, 132KV and 66KV power lines, endangering public safety. Applying the Giella v Cassman Brown principles as elaborated in Nguruman, the court held the plaintiffs had not established a prima facie case: they failed to prove ownership of the parcels, the notice was lawfully directed at structures on the wayleave corridor, and electricity and water connections and payment of land rent did not regularise the structures. Irreparable harm was not proved, any loss being compensable in damages, and the balance of convenience favoured the 1st defendant given its statutory mandate and public safety. The application was dismissed with costs to the 1st defendant.

Key legal issues

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01

Whether the plaintiffs established a prima facie case

Holding

No prima facie case was established; the plaintiffs failed to demonstrate ownership of the parcels of land or that the 1st defendant's notice was unlawful

Reasoning

The court found the notice complained of concerned structures on a high voltage power line wayleave corridor, and it was not disputed that encroachment on such a corridor is illegal. The plaintiffs did not demonstrate ownership of the plots individually or as a group, did not show the 2nd defendant did anything wrong, and did not challenge the evidence showing buildings constructed under high voltage power lines. The standard of proof is on a balance of probabilities.

p. 3
02

Irreparable harm

Holding

Irreparable harm not compensable by damages was not proved; any loss would be limited to the cost of the structures, which the 1st defendant could compensate

Reasoning

In the absence of title to the land, the court could not see the plaintiffs' possible loss beyond the costs of the structures. The court noted it had not been suggested the 1st defendant could not compensate the plaintiffs for the structures if, at trial, the plaintiffs proved the structures were not on the wayleave corridor and their demolition was illegal. The second Giella ground therefore also failed.

p. 3
03

Balance of convenience and public interest

Holding

The balance of convenience favours the 1st defendant because of its statutory mandate and the danger the structures pose to the public

Reasoning

Although it was not strictly necessary to consider the balance of convenience after failing on the first two grounds, the court held that the 1st defendant's statutory mandate to transmit, distribute and supply electricity, and the danger posed by structures under high voltage lines, meant public interest must prevail over the plaintiffs' private interests.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must show a prima facie case with a probability of success, irreparable injury not adequately compensable by damages, and if in doubt the court decides on the balance of convenience
  • Connection of structures to electricity or water supply and payment of land rent do not confer legality on structures unlawfully erected on a power line wayleave corridor

Court orders

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  1. 1.The plaintiffs' Notice of Motion dated 20th December, 2018 is dismissed
  2. 2.Costs of the application awarded to the 1st defendant

Authorities

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Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act (not expressly stated in the judgment)

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, "Jared Okongo Manyibe & 2 others v Kenya Power & Lighting Company & another [2020] KEELC 851 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/851/eng@2020-10-29

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