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Court of AppealDismissedCivil Appeal No. 80 of 2016· [2017] KECA 358 (KLR)

Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited [2017] KECA 358 (KLR)

Court of Appeal of Kenya
22 June 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Power lost its appeal: council approval is not a substitute for a landowner's consent before installing electricity lines on private land.

What this practically means

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Executive summary

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The Court of Appeal at Malindi dismissed this first appeal by Kenya Power & Lighting Company Limited against a judgment of Angote, J. of the Environment and Land Court at Malindi, which had declared that the appellant trespassed on the respondent's land (Plot No. 514 R, Malindi) by erecting electricity poles and supply lines across 16 of the respondent's 500 subdivided plots without the owner's consent, and awarded damages of Kshs.3,840,000/=. The appellant, relying on an approval and sketch map from the Municipal Council of Malindi, contended it believed it was laying lines along a public road. The Court held that the appellant failed to exercise due diligence, since had it checked land registry and survey records instead of relying solely on council approvals it would have discovered private ownership; the poles were demonstrably erected in the middle of plots, not on a road reserve, and the appellant ignored a protest from the respondent's manager. The Court reaffirmed that trespass to land is actionable per se, requiring no proof of damage, and that the trial judge's quantum was a proper exercise of discretion, applying the settled principles that an appellate court interferes with damages only for an error of principle or a wholly erroneous estimate. The appellant abandoned its fourth ground. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appellant trespassed on the respondent's land despite obtaining Municipal Council of Malindi approval

Holding

Yes. Council approval did not substitute for the landowner's consent required by sections 46 and 47 of the Energy Act, and the appellant failed to exercise due diligence by checking land registry and survey records.

Reasoning

The court found overwhelming evidence that the respondent was the registered proprietor and that the premises had been subdivided, fenced and road-networked before the works. The poles were erected in the middle of 16 plots, not on a road reserve. The appellant's own wayleaves officer conceded awareness of the Energy Act consent requirement and that no survey department consultation occurred. The presence of a murram road did not excuse failure to verify true ownership.

p. 4
02

Whether damages for trespass require proof of specific loss

Holding

No. Trespass to land is actionable per se; the respondent need not plead and prove specific loss, and the claim is not one for special damages.

Reasoning

The court adopted the settled position that where trespass is proved the affected party need not prove damage, and the court is bound to award damages depending on the facts. This disposed of the appellant's contention that the respondent should have specifically pleaded and proved its loss, which the court held was founded on an illusion that this was a claim for special damages.

p. 4
03

Whether the award of Kshs.3,840,000/= was manifestly excessive

Holding

No. The award was an exercise of the trial judge's discretion, based on relevant evidence, with no wrong principle or irrelevant consideration demonstrated.

Reasoning

The court applied the well-settled principles from Kenya Bus Services v Mayende and Henry Hidaya Ilanga v Manyema Manyoka that an appellate court interferes with quantum only on an error of principle or a wholly erroneous estimate. The trial judge had in fact reduced the respondent's claimed rate of Kshs.5,000/= to Kshs.4,000/= per plot per month, showing restraint. The appellant could not therefore complain the award was excessive.

p. 4

Legal principles established

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  • Trespass to land is actionable per se; once trespass is proved the affected party need not prove damage or loss to be awarded damages.
  • A utility laying electric lines on private land must obtain the landowner's consent under the Energy Act and cannot rely solely on municipal council approvals; it must verify ownership through land registry and survey records.
  • An appellate court will interfere with a trial judge's assessment of damages only where an error of principle is shown or the award is so high or low as to be a wholly erroneous estimate.
  • On a first appeal, the court must re-evaluate the evidence afresh but will not substitute a trial court's factual finding unless there is no evidence to support it or the trial judge was plainly wrong.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondent

Authorities

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Legislation

  • Energy ActSection 46
  • Energy ActSection 47

Cases cited (6)

  • Kiruga v Kiruga
    [1988] KLR 348
  • Simiyu v Sinino
    [1985] eKLR
  • Obadiah K. Macharia v Kenya Power and Lighting Company Limited
  • Kenya Bus Services & Another v Frederick Mayende
    [1991] 2 KAR 232
  • Henry Hidaya Ilanga v Manyema Manyoka
    [1961] EA 713
  • Nance v British Columbia Electric Railway Co Ltd
    (1951) AC 613
On appeal from
Environment and Land Court of Kenya at Malindi
E.L.C. Civil Case No. 5 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited [2017] KECA 358 (KLR)", Case Analysis (2017). Civil Appeal No. 80 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/358/eng@2017-06-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.