[2011] KEHC 1946 (KLR)
The court found that the Plaintiff had established a prima facie case of trespass and interference with its property rights by the Defendant, who had erected pylons and intended to install power lines without authority or notice. The Plaintiff's rights as registered proprietor under the Registration of Titles Act...
Source-derived case information.
- Citation
- [2011] KEHC 1946 (KLR)
- Parties
- Plaintiff: Waig Limited; Defendant: Kenya Power & Lighting Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 36 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application granted
- Legal Topics
- Trespass to Land, Injunctive Relief, Registration of Titles, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waig Limited
Plaintiff
Kenya Power & Lighting Company Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Defendant trespassed on the Plaintiff's land without authority.
- 2 Whether the Plaintiff is entitled to injunctive relief to restrain the Defendant from interfering with the property.
- 3 Whether the Plaintiff's rights as a registered proprietor under the Registration of Titles Act are absolute and indefeasible.
Ratio Decidendi
The court found that the Plaintiff had established a prima facie case of trespass and interference with its property rights by the Defendant, who had erected pylons and intended to install power lines without authority or notice. The Plaintiff's rights as registered proprietor under the Registration of Titles Act are absolute and indefeasible. The Defendant failed to respond to the application, and the Plaintiff's evidence was uncontroverted. Applying the principles in Giella v Cassman Brown, the court determined that injunctive relief was warranted to restrain the Defendant from further interference with the Plaintiff's land.
Court Disposition
application granted
Orders
- The Defendant is restrained from trespassing on or interfering with the Plaintiff's property, L.R. No. 10821/52, by erecting pylons or installing power lines without authority.
- The Defendant is ordered to remove any pylons or installations already erected on the Plaintiff's property.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC NO. 36 OF 2011(FAST TRACK)
WAIG LIMITED...........................................................................................PLAINTIFF/APPLICANT
V E R S U S
KENYA POWER &LIGHTING CCOMPANY LIMITED...................DEFENDANT/RESPONDENT
R U L I N G
The application was served but did not receive any response. The Plaintiff has annexed Certificate Title (“JMM 2”) to show it is the registered proprietor of the suit land, that is L.R. No. 10821/52 in Thika Weteithie area. In the supporting affidavit of Jacinta Mary Wanjiru, one of the directors, the Plaintiff states that on 24th January 2011 they found the Defendant had erected pylons in the land with a view to putting power lines. This interference was without notice or authority. A letter written to the Defendant on 28th January 2011 to stop was not acted upon. The Plaintiff states that it has subdivided its land into 57 plots to sell and this interference is chasing away prospective buyers. The suit was brought for permanent injunction, mandatory injunction and/or general damages.
On the uncontroverted material that has been presented by the Plaintiff, I accept that there is prima facie case of trespass on, and interfering with, the private property and that has to be restrained. Under sections 23 and 24 of the Registration of Titles Act (Cap. 281) the Plaintiff’s right to the land is absolute and indefeasible. Such right includes the right to possession, occupation, use, develop and quiet enjoyment. On basis of Giella –Vs- Cassman Brown & Co. Ltd [1973] EA 358, I grant the application in terms of prayers 3 and 4.
DATED AND DELIVERED AT NAIROBITHIS 11TH DAY OF FEBRUARY 2011
A.O. MUCHELULE
J U D G E