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ELCPartially AllowedNot stated in judgment· [2020] KEELC 1357 (KLR)

Kenya Electricity Transmission Company & another v Maryann Sheikh Abdikadir, Nuh Nassir Abdi & 120 others [2020] KEELC 1357 (KLR)

Environment and Land Court
21 September 2020
4,243 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a power transmission project to proceed across gazetted private land, but landowners must be compensated within 90 days.

What this practically means

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Executive summary

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The court determined four interlocutory applications arising from a suit by two public entities (the 1st Plaintiff, a power transmission entity, and the 2nd Plaintiff, the National Land Commission) seeking to construct the Isinya-Kajiado-Namanga 132 kV and Kenya-Tanzania 400 kV transmission lines across parcels owned by 144 Defendants via wayleaves with compensation for limited loss of land use. The 1st Plaintiff sought a temporary injunction to restrain interference with construction; the 1st Defendant sought to set aside ex parte orders of 8th June 2020 over his ungazetted parcel; the 78th to 79th Defendants sought stay and setting aside of those orders; and the 94th Defendant raised a preliminary objection attacking the court's jurisdiction and alleging non-compliance with the Land Act and Energy Act. Applying Giella v Cassman Brown, Mrao, Nguruman and Paul Gitonga Wanjau, the court held that gazettement on 21st April 2017 triggered the doctrine of eminent domain, extinguishing private rights subject to just and prompt compensation. It found a prima facie case against all Defendants except the 1st Defendant, held the Plaintiffs suffered the irreparable harm of project delay, and found the balance of convenience favoured proceeding with the project. The injunction was granted over all gazetted parcels save the 1st Defendant's parcel Kajiado/Kipeto/3225, over which the ex parte orders were set aside. The Defendants' applications and the preliminary objection were dismissed, with a 90-day negotiation directive on compensation and costs in the cause.

Key legal issues

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01

Whether the 1st Plaintiff established a prima facie case for temporary injunction

Holding

A prima facie case was established against all Defendants except the 1st Defendant, because all their parcels were gazetted on 21st April 2017 and offers of compensation had been made

Reasoning

The court applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case. Perusal of the gazette notice showed all parcels except the 1st Defendant's were gazetted for the wayleave corridor, and offers were issued though rejected as too low. Eminent domain principles were triggered by gazettement, so the injunction was warranted save for the 1st Defendant.

p. 4
02

Whether the 1st Plaintiff would suffer irreparable harm not compensable by damages

Holding

It was the 1st Plaintiff that suffered irreparable harm through project delay, while Defendants stood to be compensated for loss of use once consensus on compensation was reached

Reasoning

Applying Nguruman, the court held the harm to the Defendants was compensable by an award of compensation since the land was gazetted and compensation for limited loss of land use was payable. The transmission lines served the public interest and delay constituted ongoing harm to the 1st Plaintiff.

p. 4
03

Balance of convenience

Holding

The balance of convenience tilted in favour of the 1st Plaintiff being allowed to proceed with the project while compensation is negotiated

Reasoning

Relying on Paul Gitonga Wanjau v Gathuthi Tea Factory, the court weighed the greater harm: Defendants would retain ownership and receive compensation, whereas halting construction would derail a national transmission project. Continuity of the project pending negotiated or court-assessed compensation was preferred.

p. 4
04

Whether injunction orders could issue in the absence of a Grant of Easement or compliance with sections 171-175 of the Energy Act and section 144 of the Land Act

Holding

The objection failed; gazettement of compulsory acquisition triggered eminent domain and compensation disputes are for the court to adjudicate, so an injunction could issue before formal easement grants

Reasoning

Some Defendants argued injunctions could not issue against registered owners or absent easement agreements and statutory compliance. The court held that once the gazette notice issued, private rights were extinguished by eminent domain and the State's duty was just and prompt compensation, with the Land Act permitting court adjudication where no consensus exists.

p. 3

Legal principles established

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  • Once the state or a designated state agency has gazetted its intention to compulsorily acquire private property for public utilities, the doctrine of eminent domain applies and private rights are extinguished subject to just and prompt compensation
  • After gazettement the State is expected to provide just and prompt compensation in line with constitutional principles, and disputes over the amount of compensation do not justify halting a public-interest project
  • A temporary injunction requires the applicant to establish a prima facie case, irreparable harm not compensable by damages, and the balance of convenience

Court orders

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  1. 1.Allowed the 1st Plaintiff's Notice of Motion dated 8th June 2020 and granted the temporary injunction restraining the Defendants from interfering with construction of the transmission lines over the suit parcels, except the 1st Defendant's parcel Kajiado/Kipeto/3225
  2. 2.Directed the 1st Plaintiff to engage and negotiate with all respective landowners on just compensation within 90 days, failing which the suit would be set down for hearing for assessment of compensation
  3. 3.Allowed the 1st Defendant's Notice of Motion dated 26th June 2020 and set aside the orders of 8th June 2020 in relation to land parcel Kajiado/Kipeto/3225
  4. 4.Dismissed the 78th to 79th Defendants' Notice of Motion dated 2nd July 2020
  5. 5.Dismissed the 94th Defendant's Notice of Preliminary Objection dated 9th July 2020
  6. 6.Ordered that costs of the applications and the Notice of Preliminary Objection be in the cause

Authorities

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Legislation

  • Land Actsection 144
  • Land Actsection 133C(6)
  • Energy Actsections 171, 172, 173, 174 and 175

Cases cited (4)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao V First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land declared under Article 162(2)(b) of the Constitution (not expressly cited; jurisdiction challenged under section 133C(6) of the Land Act and rejected)

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 Electricity Transmission Company & another v Maryann Sheikh Abdikadir, Nuh Nassir Abdi & 120 others [2020] KEELC 1357 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1357/eng@2020-09-21

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