Kenya Power and Lighting Company Limited v Phillip A M Kimondiu [2018] KECA 750 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs 5.5 million payout to a landowner after power lines made his whole farm unusable, adding Kshs 100,000 for mental stress.
What this practically means
#Executive summary
#Key legal issues
#Whether damages should be computed on the entire 7.1 acres or only on the 2.85 acres covered by the power line trace
The trial judge rightly included the entire 7.1 acres, as the valuation report showed the manner in which the lines traversed the parcel rendered it almost useless for any other purpose, amounting to deprivation of use, benefit and enjoyment of the land.
The Metrocosmo Valuers report commissioned by the appellant itself stated that the two high voltage power lines occupied 40% of the parcel and that the way they traversed it rendered it almost useless, recommending surrender of the whole parcel with relocation and compensation for cost of movement. That justified treating the respondent as deprived of his land and computing damages on the whole 7.1 acres at Kshs. 150,000 per acre.
Whether the award of Kshs. 4,000,000 for irrigation was an award of special or general damages, and whether it was sustainable
Since the irrigation project had not commenced, a claim for special damages was inapplicable; the award was properly one of general damages for loss of user profit, which the trial judge was entitled to make on the Jumbo Agrovet report, limiting computation to one year.
The particulars of loss cited anticipated profits from a suspended irrigation project; the evidence, valuations and reports showed a planned, not an existing, project, so proof of actual lost profits under special damages principles was non-existent. The court treated the award as general damages for loss of user, supported by U.Y.B. Ltd v British Railways Board, and found no misdirection in limiting the period to one year and awarding Kshs. 4,000,000.
Whether damages were payable for mental stress and suffering
The trial judge made no award under this head despite expert evidence of mental stress attributable to the intrusion; the Court awarded Kshs. 100,000 as nominal damages.
Three medical professionals (Drs Makanyego, Omondi Oyoo and J.O. Jowi) demonstrated that the respondent suffered mental stress attributable to the intrusion of the power lines. The trial judge neither awarded damages under this head nor gave reasons for declining. In the circumstances the Court considered an award necessary and granted Kshs. 100,000 as nominal damages, allowing the cross-appeal to that limited extent.
Whether the award of Kshs. 500,000 for cost of movement should be disturbed
As there was no specific opposition to this award by either party, the Court did not interfere with it.
The learned judge made an award of Kshs. 500,000 as cost of movement compensating the respondent for relocation, consistent with the Metrocosmo recommendation that the owner be relocated elsewhere and compensated for cost of movement. Neither party specifically opposed the award, so the Court saw no basis to disturb it.
Legal principles established
#- Special damages are those the law will not infer from the nature of the act; they must be claimed specifically and proved strictly.
- An appellate court may only interfere with a trial judge's assessment of damages where an error of principle is shown, or where the award is so high or low that it must be a wholly erroneous estimate of the damage.
- Loss of user profits is a recoverable head of damages where the inability to undertake a project is a direct and natural consequence of the defendant's interference with the land.
- On a first appeal, the appellate court is under a duty to re-evaluate and assess the evidence and make its own conclusions, while bearing in mind that the trial court observed the demeanor of the witnesses.
Court orders
#- 1.The appellant's appeal is dismissed
- 2.The respondent's cross appeal is partially allowed to the extent of the award of nominal damages of Kshs. 100,000 for mental stress and suffering
- 3.The respondent shall have the costs in this Court and in the High Court
- On appeal from
- High Court of Kenya at Nairobi
- ELC No. 1034 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and applicable appellate jurisdiction provisions (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power and Lighting Company Limited v Phillip A M Kimondiu [2018] KECA 750 (KLR)", Case Analysis (2018). Civil Appeal No. 14 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/750/eng@2018-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.