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ELCDismissedNot stated in judgment (petition number not given)· [2020] KEELC 1089 (KLR)

Susan Wangari Mburu & 5 others v Eldoret Water and Sanitation Company Limited & another [2020] KEELC 1089 (KLR)

Environment and Land Court
30 September 2020
MOM. A. ODENY
2,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court refused to stop a sewer line project because building on a public sewer wayleave gives you no property rights to protect.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (Dr. M. A. Odeny, J) on the petitioners' application dated 5th February 2020 seeking a temporary injunction to bar the respondents from demolishing houses, removing, entering or trespassing on six parcels of land in Eldoret (Huruma Blocks 15 and King'ong'o), pending hearing of a petition. The applicants, invoking sections 24(a) of the Land Registration Act and 143, 144 and 148 of the Land Act, argued they were registered owners and that no statutory wayleave notice had been served on them, so any demolition would breach mandatory procedure and cause uncompensable loss. The respondents countered that the sewer wayleave had existed since 2005, that all statutory requirements were met, that the petitioners admitted encroaching on the wayleave with illegal structures, and that damages would suffice. Applying the Giella v Cassman Brown principles, supplemented by the 'lower risk of injustice' test from Jan Bolden Nielsen and Suleiman v Amboseli Resort, the court found no prima facie case: the 1st petitioner's affidavit admitted encroachment on the sewer line with illegal structures, so, following Veronica Njeri Waweru, they had no proprietary interest over the wayleave. Irreparable harm was not shown as compensation for crops, trees and buildings is available under the Land Act. On balance of convenience, the public interest in an operating sewer line outweighed the petitioners' private interests. The application was dismissed with costs to the respondents on 30th September 2020.

Key legal issues

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01

Prima facie case

Holding

Applicants failed to establish a prima facie case with probability of success because they admitted encroaching on the sewer line with illegal structures

Reasoning

The 1st petitioner admitted in her affidavit that the petitioners had encroached on the sewer line with illegal structures. Following Veronica Njeri Waweru, persons occupying public wayleave property with mere licences have no proprietary interest, so their Article 40 property claim has no basis and cannot support an injunction.

p. 4
02

Irreparable harm

Holding

Any loss is compensable by damages, including compensation for damaged crops, trees or buildings under the Land Act wayleave regime

Reasoning

Relying on Edward Saya Malovi, the court reasoned that the law allows compensation for damaged crops, trees or buildings where a wayleave is created, determined by a qualified valuer, so damages are an adequate remedy and the second Giella condition is not satisfied.

p. 4
03

Balance of convenience and public interest

Holding

Balance of convenience lies in refusing the injunction since it would prejudice the public served by the sewer line

Reasoning

The court weighed public interest against the petitioners' private interests. Stopping a sewer line used by the greater public, to prevent outbreak of disease, would carry the higher risk of injustice; following Mosiara, the balance tilts toward the authority whose wayleave serves the public.

p. 4

Legal principles established

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  • In an interlocutory injunction application, the Giella v Cassman Brown tests remain the basic tests, but the court may also consider the circumstances of the case and opt for the course carrying the lower risk of injustice
  • A party occupying a public wayleave/sewer reserve has no proprietary interest capable of protection by injunction
  • Balance of convenience in wayleave disputes tilts toward the authority where the wayleave serves the public interest

Court orders

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  1. 1.Application dated 5th February 2020 dismissed with costs to the respondents

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land ActSection 143(2)(a)
  • Land ActSection 144
  • Land ActSection 148
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 40

Cases cited (10)

  • Giella v Cassman Brown & Company Ltd
    (1973) EA 358
  • NYANGILO OCHIENG AND ANO. VS KENYA COMMERCIAL BANK
    Court of Appeal at Kisumu Civil Appeal No 148 of 1995 (1996) eKLR
  • Waithaka v Industrial & Commercial Development Corporation
    (2001) eKLR
  • Edward Saya Malovi Juma v Kenya Electricity Transmission Co. Ltd
    (2015) eKLR
  • Everline Sande Ngulamu & 2 others v Kenya Urban Roads Authority & 9 others
    (2018) eKLR
  • Kenya Power & Lighting Company Limited v Mosiara Trading Co. Ltd
    [2016] eKLR
  • JAN BOLDEN NIELSEN v HERMAN PHILLIIPUS STEYA ALSO KNOWN AS HERMANNUS PHILLIPUS STEYN & 2 OTHERS
    (2012) eKLR
  • Suleiman vs Amboseli Resort Ltd
    (2004) eKLR 589
  • Films Rover International
    (1986) 3 All ER 772
  • Veronica Njeri Waweru & 4 others vs The City Council of Nairobi & Others
    [2012] eKLR
Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court (constitutional petition on property rights; specific provision not 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, "Susan Wangari Mburu & 5 others v Eldoret Water and Sanitation Company Limited & another [2020] KEELC 1089 (KLR)", Case Analysis (2020). Not stated in judgment (petition number not given). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1089/eng@2020-09-30

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