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ELCDismissedNot stated in the excerpt beyond the pleadings references· [2025] KEELC 2848 (KLR)

Virani & another v Kenya Pipeline Company Limited (Environment and Land Case Civil Suit 357 of 2015) [2025] KEELC 2848 (KLR)

Environment and Land Court
25 March 2025
4,434 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 Kisumu dismissed landowners' Kshs. 322 million compensation claim against Kenya Pipeline because their 1993 easement allowed the second pipeline.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of Kisumu/Kogony/2642, sued the Defendant (a pipeline company) alleging that its laying of a second pipeline across their land in 1991 and thereafter amounted to trespass without compensation, and sought a permanent injunction, removal of the second pipeline, a declaration of entitlement to compensation of Kshs. 300,000,000/-, and special damages of Kshs. 22,400,000/-, citing the Kshs. 12,500,000/- compensation allegedly paid to Nyanza Golf Club as discrimination. The Defendant denied liability, relying on a Grant of Easement dated 19th May 1993 granted for 99 years over a 30-metre-wide strip in consideration of Kshs. 494,240/-. The court held that the easement restricted the width of the corridor but not the number of pipes, and that the second pipeline, 10 metres from the first, fell within the easement. The Plaintiffs' attempt to invalidate the easement in submissions failed because the point was not pleaded. The discrimination claim failed since the Club's easement was not in evidence. The itemised claim of Kshs. 22,400,000/- was special damages requiring strict proof, which the Plaintiffs failed to discharge, producing no receipts or supporting evidence. The suit was dismissed with costs to the Defendant on 25th March 2025.

Key legal issues

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01

Whether the Grant of Easement dated 19th May 1993 authorised the second pipeline

Holding

Yes; the easement granted rights over a 30-metre-wide strip for 99 years and did not restrict the number of pipes; both pipelines were within the 30-metre limit

Reasoning

Clause 1 of the easement granted rights to lay, construct, use, inspect, maintain, repair, replace or remove pipes over a strip 30 metres wide for 99 years, in consideration of Kshs. 494,240/-, receipt of which the Plaintiffs did not dispute. The limitation was on area, not number of pipes. The two pipelines, 10 metres apart, fell within the strip. The claim based on the second pipeline therefore failed.

p. 6
02

Whether the Plaintiffs could attack the easement agreement as void for lack of specificity in submissions

Holding

No; the plea was not raised in the pleadings and parties are bound by their pleadings

Reasoning

Order 2 Rule 4 of the Civil Procedure Rules requires matters making a claim or defence not maintainable to be specifically pleaded. Raising the invalidity of the easement only in submissions would take the Defendant by surprise and deprive it of an opportunity to defend itself. In the adversarial system, pleadings set the agenda for trial.

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Whether the Plaintiffs were entitled to compensation on the basis of discrimination compared to Nyanza Golf Club

Holding

No; easements are specific to the parties and land, and the Club's agreement was not in evidence for comparison

Reasoning

The Plaintiffs relied on the Kshs. 12,500,000/- allegedly paid to Nyanza Golf Club for its easement. The court was not furnished with the Club's easement agreement and could not establish that it was on the same terms or made in comparable circumstances, so no finding of discrimination could be made and no compensation could be ordered on that basis.

p. 8
04

Whether the claimed Kshs. 22,400,000/- was payable as damages

Holding

No; the claim was special damages requiring strict proof, which the Plaintiffs failed to tender

Reasoning

Guided by Hahn v Singh and later Court of Appeal authority, the court held the itemised claims for beacons, billboard, gates, house, fence, trees and land were exceptional losses not inferable from the trespass. Although specifically pleaded, the Plaintiffs produced no receipts or evidence of the costs incurred, so no award could be made.

Legal principles established

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  • An easement limiting the area (30 metres width) but not the number of pipes permits the grantee to lay additional pipelines within that strip
  • Parties are bound by their pleadings and cannot raise a fresh case in submissions without amendment
  • Special damages must be both specifically pleaded and strictly proved

Court orders

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  1. 1.The Plaintiffs' suit is dismissed with costs to the Defendant

Authorities

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Legislation

  • Land ActSection 2 (definition of easement)
  • Land ActSection 138
  • Civil Procedure RulesOrder 2 Rule 4

Cases cited (10)

  • Kamau v. Kamau
    [1984] eKLR
  • National Bank of Kenya Ltd v. Pipe Plastic Samkolit (K) Ltd.
    [2002] 2 E.A. 503, [2011] eKLR
  • Pius Kimaiyo Langat v. Co-operative Bank of Kenya Ltd.
    [2017] eKLR
  • Housing Finance Co. of Kenya Limited v. Gilbert Kibe Njuguna
    Nairobi HCCC No. 1601 of 1999
  • Hahn v. Singh
    Civil Appeal No. 42 of 1983, [1985] KLR 716
  • Independent Electoral and Boundaries Commission & Another v. Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Malawi Railways Ltd. v. Nyasulu
    [1998] MWSC 3
  • Zacharia Waweru Thumbi v. Samuel Njoroge Thuku
    [2006] eKLR
  • Kenya Power & Lightning Company Limited v. Philip A. M. Kimondiu
    [2018] eKLR
  • Fredrick Mukiri Kingatia v. John Njiru & 2 others
    [2019] eKLR
Jurisdiction invoked
First-instance civil suit under the Land Act 2012 and Civil Procedure Act (easement, trespass and compensation claims); specific provision not stated

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, "Virani & another v Kenya Pipeline Company Limited (Environment and Land Case Civil Suit 357 of 2015) [2025] KEELC 2848 (KLR)", Case Analysis (2025). Not stated in the excerpt beyond the pleadings references. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2848/eng@2025-03-25

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