Thika Greens Limited v Decko Africa Limited & another; Water Falls Welfare Group (Third party) (Environment & Land Case 36 of 2019) [2023] KEELC 229 (KLR)
The bottom line
#A Murang'a court ruled Safaricom's contractor trespassed by laying fibre without proven consent, but refused to order the cables removed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants entered the suit land without the Plaintiff's authority
The Defendants failed to prove on a balance of probabilities that they obtained consent from the Plaintiff or any authorized representative; their entry and installation works amounted to trespass
Although DW1 and DW2 claimed oral consent from James Wambugu, the emails produced shared scope of works and designs, not consent; no evidence showed signed documents were returned; the WhatsApp extract and groundbreaking photo did not allude to consent; and the Defendants did not call Wambugu to corroborate. The minutes of 28th October 2019 showed the sole agenda was permission to access site, which was subsequently refused by letter dated 8th November 2019.
Whether the 3rd Party (Waterfalls Welfare Group) had capacity to give consent
The 3rd Party had no verifiable interest in or possession of the suit land and lacked capacity to grant consent to the Defendants
The 3rd Party is a self-help group whose constitution was not produced, no sale or lease agreements between it and the Plaintiff were produced to show its members' nexus to the land, and its membership list of 164 names fell far short of the 960 plot owners. Possession, not bare claim, is what confers capacity in trespass matters.
Whether the 1st Defendant could obtain indemnity from the 3rd Party
The Third Party Notice against the 3rd Party was null and void as the 3rd Party, an unincorporated society, has no capacity to be sued in its own name
Relying on Eritrea Orthodox Church v Wariwax Generation Ltd and Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank, the court held that societies registered under the Societies Act are not bodies corporate and suits by or against them must be brought in a representative capacity under Order 1 rule 8 of the Civil Procedure Rules. The Third Party Notice therefore could not be sustained.
Whether the Plaintiff's claim was merited despite the subdivision of the suit land
The claim succeeded in part: declaration of trespass, a permanent injunction tied to obtaining relevant consent, and general damages of Kshs. 500,000/=, but no mandatory removal order
The court found trespass proved, but noted all 960 plots had been sold, subleases registered, and the proprietors had equal interest in the land and common areas as the Plaintiff. Given the importance of internet services and individual consents by residents, a mandatory injunction to remove the fiber was untenable; the permanent injunction was granted only until consent from relevant parties is obtained, not to be unreasonably withheld.
Legal principles established
#- To establish trespass a plaintiff must prove ownership or possession of the land and that the defendant intruded without authority
- A party alleging consent must prove it on a balance of probabilities; mere attendance at a groundbreaking ceremony does not amount to consent
- An unincorporated society registered under the Societies Act has no legal capacity to sue or be sued in its own name and can only sue or be sued through officials in a representative capacity
Court orders
#- 1.A declaration that the 1st and 2nd Defendants trespassed unto the Plaintiff's land
- 2.A permanent injunction restraining the 1st and 2nd Defendants from trespassing, encroaching, installing Fiber Network or conducting any works on LR Number 28239 (Original Number 131131) until they have acquired consent from the relevant parties, which consent shall not be unreasonably withheld
- 3.General damages of Kshs. 500,000/= granted to the Plaintiff for trespass
- 4.The 1st and 2nd Defendants to pay costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim concerning land LR No. 28239 in Murang'a County
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thika Greens Limited v Decko Africa Limited & another; Water Falls Welfare Group (Third party) (Environment & Land Case 36 of 2019) [2023] KEELC 229 (KLR)", Case Analysis (2023). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/229/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.