A court has stopped Safaricom and internet networking firm, Decko Africa Limited, from installing fibre cables to homes at Thika Greens estate without consent.
Justice Lucy Gacheru also penalised the two firms a sum of Sh500,000 as damages for trespassing on the land.
The judge issued a permanent injunction order restraining the two companies and their agents from continuing with the Sh10 million project without the consent of relevant parties to the property including Thika Greens Ltd, the estate management company, and the homeowners.
In addition, the firms were stopped from trespassing, encroaching, and installing of fibre network or conducting any work on the 410-acre property until they have acquired consent from the relevant parties, "which consent shall not be unreasonably withheld".
"This court finds and holds that Decko and Safaricom failed to prove to the required degree that they got consent to access the suit land, and proceed with installation works from Thika Greens Ltd or any of its authorized representatives," said Justice Gacheru.
The judge also declined to order for removal of all the fibre installations and any other materials erected on the suit land.
She said granting such an order was untenable, observing the importance of internet services in today’s world, especially in the aftermath of Covid-19, which forced many operations and access to services, even the most basic ones to be pushed online.
The judgment emerged from a suit filed by Thika Greens Ltd in 2019 suing Decko and Safaricom Plc for trespassing into the property to install a fibre network.
Some 164 homeowners at the estate, under the auspices of Waterfalls Welfare Group, joined the suit as interested parties. They are the ones who had invited Decko and Safaricom to install a fibre network in the estate and there was no Management Company in place at the time.
Justice Gacheru ruled that the welfare group could not give consent to the telecommunications firms to access the property and install an internet network.
In addition, the judge said the suit land as per the evidence in court is subdivided into 960 plots all of which have been bought while the list of members of the welfare group produced contained 164 names, "which is not even a quarter of all the owners/residents of the suit land".
"The welfare group has no verifiable interest in the suit land, and it follows therefore that it lacks capacity to give consent to any third party to enter unto the suit land and perform any installation works as it did in the instant case," said the judge.
The court noted further that while a Management Company Waterfalls Country Homes Management Limited, has been incorporated, the same is not fully operational yet as Thika Greens Ltd is yet to cede control of the same to the purchasers of the 960 plots as required by law.
In the court papers, Thika Greens Ltd contended that Decko Ltd and Safaricom Plc without its permission and consent and against their written advice trespassed onto the property and commenced the construction and installation activities of the fibre network, and interfered with its wayleave plan.
