An Eldoret court has ruled that an underground oil pipeline can remain on land owned by the Catholic Church, even though the agreement used to justify it was found to be invalid.
- •In a ruling by the Environment and Land Court, Kenya Pipeline was allowed to keep using the land because the pipeline had been installed before the Church secured its title, giving it a prior right that still applies despite the change in ownership.
- •The Church, which holds a 99-year lease from 2008 over the land that hosted the Catholic University of Eastern Africa (CUEA), said Kenya Pipeline entered without consent, installed pipelines and disrupted its use.
- •The religious body asked the court to affirm its ownership of the land, order for the removal of the pipeline, and award damages.
“The Land Registration Act provides that any pipelines that were placed before any parcel of land prior to its registration is deemed to be an overriding interest over the parcel of land even if such an easement has not been recorded in the register of the parcel of land in issue,” Judge Emmanuel Washe ruled.
Kenya Pipeline had argued that its presence on the land was lawful, relying on a 2013 easement agreement with the university, under which it paid KSh 2.3 million for a corridor measuring three meters wide and 343 meters long. It said the installation was done with the knowledge and authority of the parties on the ground and that the pipeline serves a public function.
The court found that the Church is the lawful owner of the land based on its certificate of lease, a position that was not contested. It then turned to the easement agreement relied on by Kenya Pipeline and found it to be unlawful. The agreement had been executed by the university, which the court said had no legal capacity to grant rights over the land because it was not the registered owner and had no authority from the Church.
Despite that finding, the court held that Kenya Pipeline’s occupation of the land is lawful. Evidence before the court showed that the pipeline had been installed in 2014, while the Church’s certificate of lease was issued in 2017. Under Kenyan land law, pipelines installed before registration constitute overriding interests that affect the land even if they are not recorded on the title.
On that basis, the court concluded that Kenya Pipeline is entitled to continue using the portion of land where the pipeline lies and that its presence does not amount to trespass.
The court rejected claims that the pipeline’s existence on the land could cause actual harm or risk on the basis of lacking evidence. However, it directed Kenya Pipeline to conduct an environmental impact assessment within 180 days, in consultation with the Church and other stakeholders, and to file the report in court within 210 days.
