[2018] KEELC 3533 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.334 of 2016

GEORGE NGWENA OBONYO..........................................1ST PLAINTIFF

PETER OCHIENG OPIYO.................................................2ND PLAINTIFF

VERSUS

KENYA ELECTRICITY TRANSMISSION

COMPANY LIMITED..............................................................DEFENDANT

RULING

1. Kenya Electricity Transmission Company Limited (Ketraco), the Defendant, seeks vide the notice of motion dated 14th February 2017 to have the suit commenced by George Ngwena Obonyo and Peter Ochieng Opiyo,the Plaintiffs, through the plaint dated 28th September 2016 struck out and or dismissed with costs. The application is based on the six (6) grounds on its face and are summarized as follows;

a) That the suit is scandalous, frivolous, vexatious and otherwise an abuse of the process of the court.

b) That the suit does not disclose any reasonable cause of action.

c) That the suit is statutorily time barred as the cause of action arose on 1983.

d) That the suit is likely to prejudice and embarrass the Defendant and this application should be allowed in the interest of justice.

2. The application is supported by the affidavit sworn by Antony Mbunya Kiarahu, a Senior legal officer with the Defendant, on the 14th February 2017 in which he depones to the following among others;

a) That the Defendant was incooperated as a limited liability company on the 2nd December 2008 and hence not in existence in 1983 when the alleged act of trespass occurred.

b) That as the alleged cause of action occurred in 1983, the suit filed in the year 2016, which is 33 years later, is barred by the Limitation of Actions Act.

c) That the Defendant’s surveyors have established that none of the Defendants electric transmission power lines traverses land parcels Kisumu/Kasule/2375, 6708 to 6710.

d) That the Defendant has not dealt with the Plaintiff or his representatives.

3. The application is opposed by the Plaintiff through the grounds of opposition dated 15th June 2017 which sets out two grounds as follows:

a) The applicatio9n does not meet the criteria for the grant of orders sought therein.

b) The application is misconceived and lacks merits.

4. The application came up for hearing on the 30th January 2018 when Mr. Bukania and Achura, learned counsel for the Defendant and Plaintiff respectively, made their oral submissions.

A) MR. BUKANIA’S SUBMISSIONS ARE AS SUMMARIZED BELOW;

a) That the Defendant is non-suited as they were not in existence in 1983 when the alleged trespass occurred.

b) That the suit having been filed in 2016, which is 33 years after the alleged trespass, is statute barred under Section 7 of the Limitatio0n of Actions Act. The learned counsel refered to the following cases;

Haron Onyancha –V- National Police Service Commission & Another [2017] eKLR.

Bhundia Builders and Erectors –V- Ima Agencies Limited [2014] eKLR.

John Michael Wanjau –V- Municipal Council of Eldoret [2013] eKLR.

B) MR. ACHURA’S SUBMISSIONS ARE AS SUMMARIZED BELOW;

That the suit is not time barred as the trespass is continuing for the poles are still on the land. The learned counsel refered to the case of Peter Mwangi Kabui –V- Rural Electrification Authority [2016] eKLR.

That pursuant to Order 1 Rule 9 of the Civil Procedure Rules, the suit should not be struck out for reasons of misjoinder. That the party sued as the defendant is the owner of the poles and transmission lines in issue, which were elected without the plaintiff’s consent.

5. The issues for determination by the court are as follows:

a) Whether the Defendant is non-suited in this case.

b) Whether the suit is statue time barred.

c) Whether the suit discloses a reasonable cause of action against the Defendant.

d) Who pays the costs.

6. The court carefully considered the grounds on the notice of motion, grounds of opposition, affidavit evidence, oral submissions, pleadings filed, authorities cited and come to the following determinations;

a) That the copies of title deeds in respect to land parcel Kisumu/Kasule/6708 and 2375 annexed to the Plaintiff’s list of documents confirms that Peter Ochieng Opiyo, the 2nd Plaintiff, became the registered proprietor of the two parcels on the 17th October 2014 and 28th October 1998 respectively. That further, the copy of the title deed for Kisumu/Kasule/6710 also annexed to the said list confirms that the land got registered with the 1st Plaintiff on the 29th September 2014. That though the copies of the title deeds for Kisumu/Kasule 6708 and 6710 indicates at page 2 that theyare subdivisions form parcel 1261, that is doubtful as the copy of the green card for parcel Kisumu/Kasule/1261 annexed tothe Plaintiff’s list of documents shows that the title was closed upon subdivision to parcels 1817 and 1818. That the copies of the green card for parcel Kisumu/Kasule/1817 and 1818 were not availed to the court.

b) That though the Plaintiffs pleadings are unclear especially paragraph 6 to 8, it is however obvious that their case is that the electricity power lines were erected in 1983 and were still on the land by the time this suit was filed. That though the limitation period for an ordinary tort based claim as provided for under Section 4 of Limitation of Actions Act Chapter 22 of Laws of Kenya is 3 (three) years, the Plaintiffs claim is based on a continuing trespass. That like in the case of Peter Mwangi Kabui – V- Rural Electrification Authority [2016] eKLR, where a similar ground was raised in a preliminary objection and rejected, the court finds no merit in the objection based on the limitation for the continued presence of the poles and power line on the land makes the trespass, if established continous.

c) That having found as in (b) above, that the Plaintiffs claim is based on a continuing trespass, then the Defendant’s groundthat they only came into being in 2008, and therefore could not be held answerable for an act done in 1983 has no basis, as the trespass alleged by the Plaintiffs is continuing todate.

7. That for reasons set out above, the Defendant notice of motion dated 14th February 2017 is without merit and is dismissed with costs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 2ND DAY OF MAY 2018

In presence of;

Plaintiffs Absent

Defendant Absent

Counsel Mr. Adeva for the Plaintiffs

Mr. Lugano for Simiyu for Defendant

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE