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ELCPartially AllowedELC No. 114 of 2010; ELC No. 795 of 2007; ELC No. 615 of 2010 (O.S) (consolidated)· [2022] KEELC 2571 (KLR)

Link Properties Limited & 10 others v Kenya Power & Lighting Company Ltd & 6 others; Chege & 9 others (Interested Parties) (Environment and Land Case Civil Suit 114 & 615 of 2010 & 795 of 2007 (Consolidated)) [2022] KEELC 2571 (KLR)

Environment and Land Court
12 July 2022
19,031 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~76 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled squatters on a Ruai plot must leave within 180 days, while the owner's unregistered buyer could not sue Kenya Power for trespass.

What this practically means

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Executive summary

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Three consolidated suits concerned Plot No. 11531/8 (Chokaa, Ruai, Nairobi), registered in the name of the late Ranbir Kent. Link Properties Limited sued Kenya Power for trespass, claiming Kshs. 280,000,000/- in loss of income after KPLC laid power lines on the land without its consent, having purchased the property from the Kents in 2006 under an unregistered transfer. The Kents sued former employees and squatters for eviction, while the squatters (Simon Chege & 7 others for over 2,500 residents) counterclaimed for adverse possession. The court found the squatters had not proved adverse possession: they occupied as employees of the deceased with permission, permission was only withdrawn in 2002, so the 12-year statutory period had not run when they filed suit in 2010; further, a representative suit was unsuitable for such a claim and the list of residents was unreliable. Their claim failed. Having no proprietary interest, the squatters were trespassers; judgment was entered for the Kents with eviction within 180 days, a permanent injunction, Kshs. 1,000,000/- damages for trespass and costs against the defendants. On Link's suit, the court held that the unregistered transfer passed no legal interest under section 32 of the Registration of Titles Act; as mere beneficial owner Link lacked locus standi to sue KPLC, and the suit was struck out. In any event KPLC trespassed by laying lines without the owner's permission, but the damages claim was unproved since squatters, not the power lines, prevented development; Link would have got only nominal damages. ELC No. 114 of 2010 and ELC No. 615 of 2010 were dismissed with each party bearing its own costs.

Key legal issues

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01

Adverse possession by representative suit

Holding

Claim failed; squatters did not prove when each entered, which portion each occupied, or non-permissive continuous occupation for 12 years; suit brought prematurely in 2010

Reasoning

The court analysed the squatters' list of 2294 residents, finding many names without plot numbers, plots without names, undeveloped plots, and no evidence of date of entry. Witnesses admitted occupation as employees of the deceased with permission. Time for limitation began running only in 2002 when the administrators revoked permission, so 12 years had not elapsed by December 2010. The sale agreement with Link further negated the adverse claim.

p. 26
02

Locus standi of beneficial owner to sue for trespass

Holding

Link, holding only an unregistered transfer, had no legal right and could not sue KPLC; suit struck out for want of locus standi

Reasoning

Under section 32 of the Registration of Titles Act the unregistered transfer passed no interest. Link acquired only a beneficial interest enforceable against the Kents. Following the authorities cited by KPLC, a beneficiary cannot sue a third party unless the trustee refuses to act and is joined as defendant. No evidence showed the Kents refused to join KPLC in their own pending suit.

03

Trespass by KPLC in laying power lines

Holding

KPLC trespassed by entering and laying electricity lines without notifying or obtaining the consent of the owner

Reasoning

The Electric Power Act 1997 (ss. 45(2), (3)) and the Energy Act 2006 (s. 46) required notice to and consent of the landowner. The owner was identifiable from the title register. KPLC made no attempt to notify the owner. The statutory duty to supply electricity to applicants did not excuse entry without the landowner's permission.

p. 29
04

Quantum of damages claimed by Link

Holding

Claim of Kshs. 280,000,000/- unproved; only nominal damages would have been available

Reasoning

The property was already occupied by squatters when KPLC laid the lines, so Link's inability to develop was not caused by the power lines. No data showed that electricity attracted more squatters. The project proposal was deficient, unsigned and ignored the squatters and financing costs.

p. 29
05

Trespass by squatters and eviction

Holding

Having failed in adverse possession, the squatters were trespassers; the Kents entitled to eviction, injunction and damages

Reasoning

Title carries legal possession (Gitwany Investments). The suit property devolved to the estate of the deceased, whose administrators are the lawful owners. The squatters, having no proprietary interest, occupied without justifiable cause. Judgment was entered for the Kents against the original defendants and the interested parties joined as defendants on 15 December 2010.

p. 26

Legal principles established

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  • A purchaser who has paid the purchase price and holds an unregistered instrument of transfer acquires only an equitable/beneficial interest and cannot maintain an action for trespass against a third party unless the trustee/legal owner refuses or fails to sue and is joined as co-defendant
  • Under section 32 of the Registration of Titles Act (now repealed) an unregistered transfer could not transfer land or any interest in land registered under the Act
  • A power licensee must notify and obtain the permission of the owner of land before laying electricity supply lines thereon; a statutory duty to supply electricity to applicants does not absolve the licensee from obtaining the landowner's permission
  • Occupation of land with the permission of the owner is non-permissive only from the date the permission is withdrawn, from which limitation time begins to run
  • An adverse possession claim is not suited to a representative suit; each claimant must prove the date of entry, the specific portion occupied and non-permissive, open, continuous and uninterrupted occupation for the statutory period

Court orders

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  1. 1.ELC No. 114 of 2010 dismissed with each party bearing its own costs
  2. 2.ELC No. 615 of 2010 dismissed with each party bearing its own costs
  3. 3.Judgment entered for the Kents in ELC No. 795 of 2007: the defendants and interested parties to vacate and hand over possession of L.R No. 11531/8 within 180 days from the date of judgment
  4. 4.In default of vacating within 180 days, the plaintiffs at liberty to apply for warrants for forceful eviction
  5. 5.Permanent injunction restraining the defendants and interested parties from committing further acts of trespass on L.R No. 11531/8
  6. 6.In the event of forceful eviction, the plaintiffs shall comply fully with the provisions of Section 152G of the Land Act
  7. 7.The defendants jointly and severally to pay the plaintiffs Kshs. 1,000,000/- as damages for trespass
  8. 8.The plaintiffs to have the costs of ELC No. 795 of 2007 paid by the defendants jointly and severally

Authorities

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Legislation

  • Limitation of Actions ActSection 13
  • Energy ActSections 46 and 57 (Energy Act 2006); Section 46 (Energy Act 2012); Energy Act 2019
  • Electric Power Act, 1997 (No. 11 of 1997)Sections 28(1), 45(2) and (3)
  • Electric Power Act, Chapter 314 Laws of KenyaSection 21(1)
  • Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed)Sections 23(1) and 32(1)
  • Land ActSection 152G

Cases cited (15)

  • Granton Daudi Woresha v Michael Mwoki Kilonzo
    [2018] eKLR
  • Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Nancy J. Houghton & others v Linda Jean Johnson, trustee
    71 Mass App Ct. 825
  • Kweyu v Omutut
    [1990] eKLR
  • Gabriel Mbui v Mukindia Manyara
    [1993] eKLR
  • Joseph Hayim Hayim v Citybank NA
    [1987] AC 730
  • Lawrence Gachau Kihu v Mary Wangui Maina and Kihu Maina
    [2014] eKLR
  • Isiolo County v Choke Construction Suppliers Co. Ltd. & 3 others
    [2020] eKLR
  • Maliamu Ncurubi M'ibiri v Francis M'imanyara M'ringera
    [2011] eKLR
  • Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others
    [2018] eKLR
  • Mtana Lewa v Kahindi Ngala Mwangandi
    [2005] eKLR
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Kimani Ruchine & Another v Swift, Rutherford Co. Ltd. & another
    [1977] KLR 10
  • Wambugu v Njuguna
    [1983] KLR 172
  • Gitwany Investments Limited v Tajmal Limited & 3 others
    [2006] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership, occupation and use of land

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, "Link Properties Limited & 10 others v Kenya Power & Lighting Company Ltd & 6 others; Chege & 9 others (Interested Parties) (Environment and Land Case Civil Suit 114 & 615 of 2010 & 795 of 2007 (Consolidated)) [2022] KEELC 2571 (KLR)", Case Analysis (2022). ELC No. 114 of 2010; ELC No. 795 of 2007; ELC No. 615 of 2010 (O.S) (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2571/eng@2022-07-12

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