Mike Kipkemboi arap Singoei & 11 others v Kenya Pipeline Company Limited [2021] KEELC 2488 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case with a probability of success
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
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.
Whether the applicants would suffer irreparable harm
No; the alleged loss (developments worth Kshs 120,000,000 and architectural designs) is quantifiable and compensable in damages
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.
Where the balance of convenience lies
The balance of convenience favours the respondent, since the pipeline already exists and an injunction would interrupt safe transportation of highly inflammable products
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.
Legal principles established
#- 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
#- 1.The application dated 4th November 2020 seeking a temporary injunction is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (application for temporary injunction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.