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ELCDismissedNot stated in excerpt (Eldoret ELC application dated 4th November 2020)· [2021] KEELC 2488 (KLR)

Mike Kipkemboi arap Singoei & 11 others v Kenya Pipeline Company Limited [2021] KEELC 2488 (KLR)

Environment and Land Court
13 July 2021
2,888 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret dismissed landowners' bid to stop Kenya Pipeline from accessing a 30-metre pipeline corridor crossing their plots.

What this practically means

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Executive summary

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The plaintiffs/applicants, owners of land parcels ELDORET MUNICIPALITY/BLOCK 15/1739, 1760, 2000 and 2101 (many of them churches), sought a temporary injunction restraining the defendant/respondent, Kenya Pipeline Company, from trespassing on, demolishing structures on, encroaching on or placing beacons on their parcels. The applicants asserted title through sale agreements and allotment letters and alleged that the respondent, which holds a pipeline wayleave adjacent to the land, threatened in 2020 to mark a 30-metre wayleave running through their plots. The respondent countered that it acquired 30-metre wayleaves between 1991 and 1993 when the land was unalienated government land, before any allotments; that the wayleave is an overriding interest under section 28 of the Land Registration Act and a public right of way under sections 138 and 143 of the Land Act binding all successors in title; that the applicants had erected structures within the wayleave posing danger to two live high-pressure petroleum pipelines; and that the 4th applicant had already been compensated for the first pipeline. Applying the Giella v Cassman Brown tests, the court found no prima facie case because the applicants' rights are subject to the overriding wayleave; found no irreparable harm since the claimed developments (Kshs 120,000,000 plus architectural designs) are quantifiable and compensable in damages; and held the balance of convenience favours the respondent because an injunction would interrupt safe transportation of highly inflammable products. The application was dismissed with costs to the respondents.

Key legal issues

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01

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

Holding

No prima facie case was established; the applicants' allotments are subject to the respondent's pre-existing 30-metre pipeline wayleave as an overriding interest

Reasoning

Although the applicants produced sale agreements and allotment letters, the respondent acquired the wayleave over unalienated government land in 1991–1993 before the applicants' allotments. Section 28 of the Land Registration Act and sections 138 and 143 of the Land Act render registered land subject to pipelines and public rights of way without noting on the register, so the wayleave binds the applicants as successors in title.

p. 4
02

Whether the applicants would suffer irreparable harm

Holding

No; the alleged loss (developments worth Kshs 120,000,000 and architectural designs) is quantifiable and compensable in damages

Reasoning

Relying on Pius Kipchirchir Kogo v Frank Kimeli Tenai, irreparable injury is that which cannot be adequately compensated in damages. Since the applicants' claimed developments are assessable in money, damages are an adequate remedy; by contrast, an injunction risking a pipeline burst would cause irreparable harm to the respondent and the public.

p. 4
03

Where the balance of convenience lies

Holding

The balance of convenience favours the respondent, since the pipeline already exists and an injunction would interrupt safe transportation of highly inflammable products

Reasoning

Applying the lower-risk-of-injustice test from Suleiman v Amboseli Resort, the court weighed hardship: the applicants can be compensated in damages, but the respondent cannot be compensated if the pipeline bursts or an accident occurs. The 4th applicant had already been compensated for the first pipeline. The injunction would pose the greater risk of injustice.

p. 4

Legal principles established

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  • A registered proprietor's title is subject to overriding interests, including pipelines laid under statutory powers, which bind owners of the servient land without being noted on the register
  • A public right of way (wayleave) attaches to and runs with the servient land and binds successors in title
  • Where developments are quantifiable in monetary terms, damage is compensable by damages and irreparable harm is not established

Court orders

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  1. 1.The application dated 4th November 2020 seeking a temporary injunction is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Land ActSection 138(3)
  • Land ActSections 143(1), 143(2)(a), (3) and (4)
  • Land Registration Act, 2012Section 28(1)(i)

Cases cited (5)

  • Giella vs Cassman Brown Co. Ltd
    [1973] EA 358
  • Kenya Power and Lighting Company v. Mosiara Trading Co. Ltd
    2016 eKLR
  • Kenya Power & Lighting Co. Ltd v Kipevu Inland Container EPZ Ltd
    [2018] eKLR
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    (2018) eKLR
  • Suleiman vs. Amboseli Resort Limited
    (2004) 2 KLR 589
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (application for temporary injunction)

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, "Mike Kipkemboi arap Singoei & 11 others v Kenya Pipeline Company Limited [2021] KEELC 2488 (KLR)", Case Analysis (2021). Not stated in excerpt (Eldoret ELC application dated 4th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2488/eng@2021-07-13

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