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Court of AppealPartially AllowedCivil Appeal 130 of 2019· [2022] KECA 512 (KLR)

The Kenya Power & Lighting Company Limited v Samuel Mwangi Mburu

Court of Appeal
6 May 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
4,304 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a trespass claim over power lines cannot succeed until a Land Registrar first officially determines the property boundary.

What this practically means

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Executive summary

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The Kenya Power & Lighting Company Limited appealed against a judgment of the Environment and Land Court at Mombasa (Omollo, J.) which found that the appellant had erected electric power lines on the respondent's parcel, Kwale/Ukunda/50, without consent, and ordered removal of the power line, a permanent injunction, and Kshs 300,000 as damages for trespass. The appellant contended the lines ran through the adjacent Plot No. 47, that the boundary between the plots was never established, and that the Judge ignored survey reports, including a court-ordered report of 4th October 2016. The respondent maintained the line traversed his land, that the trial court's site visit confirmed this, and that trespass is actionable per se. The Court of Appeal, re-appraising the evidence under Rule 29(1)(a), held that the Judge misdirected herself: she failed to take account of PW1's subsequent court-ordered report, which discredited his earlier testimony by stating the boundaries could not be authoritatively re-established, and she treated the respondent's fence as defining the boundary despite evidence the fenced area exceeded the 0.1 Ha title. Relying on Section 18(2) of the Land Registration Act, the Court held that boundary determination by the Land Registrar was a sine qua non to any finding of trespass. Allowing the appeal to that extent, the Court set aside the ELC judgment and remitted the proceedings with directions that the District Land Registrar, Kwale inspect the property and file a report, after which the ELC would determine trespass. Each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether the ELC could determine trespass without first establishing the boundary of the respondent's plot

Holding

No. Boundary determination under Section 18 of the Land Registration Act was a sine qua non; the Judge misdirected herself in relying on the respondent's fence and PW1's earlier testimony.

Reasoning

The essence of the claim was that the power lines were within the respondent's parcel, which the appellant denied. Section 18(2) bars courts from entertaining boundary disputes unless boundaries are first determined by the Land Registrar. The Judge ordered the Director of Survey and District Land Registrar to confirm the pole's position but never ensured compliance, then relied on PW1's testimony that a later, court-ordered report had undermined. It was therefore unsafe to treat the respondent's fence as defining the boundary.

p. 7
02

Whether the appellate court could interfere with the ELC's factual finding of trespass

Holding

Yes. The Judge failed to take into account PW1's subsequent report of 4th October 2016, which discredited his earlier testimony, and thus misapprehended the evidence.

Reasoning

Applying the established principles for interference with factual findings, the Court found the Judge overlooked the court-ordered report in which PW1 stated boundaries could not be authoritatively re-established using the PID and recommended referral to the Land Registrar. That report undermined PW1's earlier testimony placing the power line in the middle of Plot 50, and there was considerable evidence the fenced land exceeded the 0.1 Ha title area.

p. 6
03

What remedy follows where the trial court's finding of trespass cannot stand

Holding

The appeal was allowed to the extent that the ELC judgment was set aside and the proceedings remitted for boundary determination by the District Land Registrar, Kwale, after which the ELC would determine trespass.

Reasoning

Rule 31 of the Court of Appeal Rules empowers remittal with directions. The Court directed the ELC to order the District Land Registrar, Kwale to inspect the property and file a report within prescribed periods, and then to determine trespass on the basis of that report and any other relevant evidence.

p. 7

Legal principles established

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  • A court cannot entertain an action relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with Section 18 of the Land Registration Act; a trespass claim premised on the location of a structure relative to a boundary requires prior boundary determination.
  • An appellate court interferes with a first-instance factual finding only on established grounds: misdirection in law, misapprehension of facts, taking or failing to take account of relevant considerations, or a plainly wrong discretionary decision.
  • Under Rule 31 of the Court of Appeal Rules, the Court may remit proceedings to the lower court with appropriate directions and make incidental or consequential orders.

Court orders

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  1. 1.Proceedings remitted back to the Environment and Land Court
  2. 2.ELC directed to order the District Land Registrar, Kwale to inspect the property within a period to be determined by the ELC to establish whether the appellant's power lines and poles are erected within the boundaries of the respondent's property
  3. 3.Land Registrar to file a report with the ELC within a period prescribed by that court
  4. 4.ELC to determine, based on the report and any other relevant evidence, whether the appellant trespassed on the respondent's property
  5. 5.Judgment of the ELC dated 21st September 2018 set aside
  6. 6.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land Registration ActSection 18
  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19
  • Electric Power Act No. 11 of 1997Section 46
  • Court of Appeal RulesRule 29(1)(a)
  • Court of Appeal RulesRule 31

Cases cited (3)

  • Selle and another vs. Associated Motor Boat Co. Ltd
    [1968] EA 123

    Duty of a first appellate court to re-appraise evidence and draw inferences of fact

  • United India Insurance Co. Ltd, Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co Ltd vs. East African Underwriters (Kenya) Ltd
    [1985] eKLR

    Circumstances in which an appellate court may interfere with a trial judge's decision

  • Peters vs. Sunday Post Ltd
    [1958] E.A 424

    Caution with which an appellate court should differ from findings of fact of the trial judge

On appeal from
Environment and Land Court at Mombasa
ELC Case No. 151 of 2013
Jurisdiction invoked
First appeal under the Court of Appeal Rules (Rule 29(1)(a)); appellate jurisdiction over the ELC judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "The Kenya Power & Lighting Company Limited v Samuel Mwangi Mburu", Case Analysis (2022). Civil Appeal 130 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/512/eng@2022-05-06

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