Kenya Electricity Generating Company PLC v Tiribe Investments Limited & another (Land Case E045 of 2024) (Environment and Land) [2025] KEELC 3031 (KLR)

The Defendants contended the dispute concerned creation of wayleaves and easements, which under Sections 133A, 133C(6) and 133D of the Land Act must go first to the Land Acquisition Tribunal, with the court hearing appeals only. The Plaintiff asserted the suit sought enforcement of easements already existing under a 1987 Wayleave Agreement and Section 32 of the Limitation of Actions Act. Whether the 1987 agreement was valid or superseded by a claimed 1973 registered easement required factual and testimonial evidence, so the objection was not a pure point of law.

Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and the Supreme Court's decision in IEBC v Jane Cheperenger, the court reiterated that a preliminary objection must rest on a pure point of law and cannot be a vehicle for introducing disputed facts. The claim of a 1973 superseding agreement was a new, disputed fact never availed to the Plaintiff, and the Defendants themselves ventured into arguments of fact and evidence to sustain it.

The Defendants argued that no easement can be acquired by prescription under Section 98(7) of the Land Registration Act, and that where general and specific law conflict, the specific law prevails. The Plaintiff countered that under Section 32 of the Limitation of Actions Act an easement enjoyed peaceably, openly, as of right and without interruption for 20 years is absolute and indefeasible, and proving those prerequisites was a matter of factual evidence. The court did not resolve this at the interlocutory stage.