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Court of AppealPartially AllowedCivil Appeal No. E247 of 2020 (lead file), consolidated with Civil Appeal No. E248 of 2020

Kenya Power & Lighting Company Ltd v Ringera & 2 others (Civil Appeal E247 & E248 of 2020 (Consolidated)) [2022] KECA 104 (KLR)

Court of Appeal of Kenya
4 February 2022
RNR. N. NambuyeASAsike-MakhandiaJMJ. Mohammed
7,504 words in judgment
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The bottom line

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The Court of Appeal upheld Kenya Power's liability for trespassing with power lines but reduced the landowners' compensation, ruling it must reflect loss of use, not full land value.

What this practically means

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Executive summary

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This consolidated judgment disposes of two first appeals, Civil Appeal No. E247 of 2020 (Kenya Power Ltd vs. Eunice Nkirote Ringera) as lead file and Civil Appeal No. E248 of 2020 (Kenya Power Ltd vs. George Joseph Kangethe and Ellah Karwitha Kangethe), both against judgments of C. Ochieng, J. of the Environment and Land Court at Kajiado delivered on 27th July 2020, which found that the appellant had committed continuing trespass by erecting high voltage power lines on the respondents' land without consent contrary to the Energy Act and the Trespass Act. Liability at 100% was conceded before the Court of Appeal, leaving quantum and the Energy Act issue in contest. The appellant argued the awards were excessive and unconscionable, that compensatory damages wrongly rested on the full land value despite evidence that Eunice used her title as bank collateral and George and Ellah built bungalows after the trespass, and that the trial Judge should have applied sections 46(1)-50(1) of the Energy Act, 2006. Applying the settled principles governing appellate interference with discretionary awards, the Court affirmed liability and the general damages for continuing trespass (Kshs.2 million for Eunice; Kshs.4 million for George and Ellah), but found the compensatory awards excessive because they were pegged on property value rather than loss of use, and substituted Kshs.6 million for Eunice and Kshs.12 million for George and Ellah. The Energy Act ground was rejected: the statutory dispute-resolution mechanism is optional, and the point impermissibly sought to reargue a dismissed preliminary objection against which no appeal was filed. The appeal partially succeeded, with no costs awarded to the appellant given the continuing trespass. The appeal partially succeeded, with no costs awarded to the appellant given the continuing trespass.

Key legal issues

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01

Whether the awards of general damages for continuing trespass were excessive

Holding

The general damages awards of Kshs.2,000,000 (Eunice) and Kshs.4,000,000 (George and Ellah) were affirmed as commensurate to the loss suffered from the continuing trespass

Reasoning

Liability was conceded at 100%. The trespass began in 2013, is still continuing, and solely benefits the appellant through electricity supply to its customers to the exclusion of the respondents. The trial Judge considered the absence of rebuttal evidence and applicable case-law principles. The appellate court found no error in the manner the award was reached and affirmed it under the respondents' notice to affirm.

p. 11
02

Whether the compensatory damages awards were excessive

Holding

The compensatory awards were set aside and substituted with Kshs.6,000,000 for Eunice and Kshs.12,000,000 for George and Ellah

Reasoning

The trial Judge erred in basing compensatory damages on the full value of the suit properties per the valuation reports, instead of assessing the extent of loss of use. Eunice's land was twice used as collateral with Family Bank after the trespass without rebuttal, and bungalows were constructed on George and Ellah's parcels, showing the land was not rendered useless. The awards were therefore an erroneous estimate warranting interference and were scaled down.

p. 12
03

Whether the trial Judge erred in failing to apply sections 46(1)-50(1) of the Energy Act, 2006

Holding

The ground was rejected; the Act's provisions merely offer an optional out-of-court mechanism and do not bar litigation

Reasoning

On its own construction of the sections, the court found they relate to out-of-court dispute resolution and compensation mechanisms that the respondents were at liberty, but not obliged, to invoke. Further, the same issue had been raised in preliminary objections dismissed in a ruling of 2nd May 2019, against which no appeal was filed, so the ground was an attempt to reargue it through the back door and was rejected.

p. 12

Legal principles established

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  • An appellate court may interfere with a discretionary award of damages only upon demonstrated misdirection in law, misapprehension of facts, consideration of irrelevant factors, omission of relevant ones, or where the decision is plainly wrong
  • Nothing in sections 46(1)-50(1) of the Energy Act, 2006 bars an aggrieved party from seeking redress in court instead of the inbuilt out-of-court dispute resolution mechanism
  • A ground of appeal cannot be used to reargue a trial court ruling against which no appeal was filed
  • Compensatory damages for trespass must be commensurate to loss of use, not pegged on the full value of the property where the trespass has not rendered it wholly useless

Court orders

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  1. 1.Liability in favour of the respondents at 100% is affirmed
  2. 2.The award of damages for continuous trespass at Kshs.2,000,000.00 for Eunice and Kshs.4,000,000.00 for George and Ellah is confirmed
  3. 3.The award of compensatory damages awarded by the trial court is set aside and substituted with an award of Kshs.6,000,000.00 for Eunice and Kshs.12,000,000.00 for George and Ellah
  4. 4.There will be no award of costs to the appellant for the appeal partially allowed, because the trespass is still continuing and for the benefit of the appellant
On appeal from
Environment and Land Court at Kajiado
ELC No. 869 of 2017 and ELC No. 797 of 2017
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, 2010 (appeals from the Environment and Land Court; Rule 94 invoked by respondents for notice of grounds for affirming)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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 Ltd v Ringera & 2 others (Civil Appeal E247 & E248 of 2020 (Consolidated)) [2022] KECA 104 (KLR)", Case Analysis (2022). Civil Appeal No. E247 of 2020 (lead file), consolidated with Civil Appeal No. E248 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/104/eng@2022-02-04

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