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ELCAllowedMalindi HCCC (unspecified number)· [2014] KEELC 99 (KLR)

Fleetwood Enterprises Limited v Kenya Power & Lighting Limited [2014] KEELC 99 (KLR)

High Court of Kenya
7 November 2014
OAO. A. Angote
2,879 words in judgment
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The bottom line

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Kenya's High Court ruled that an electricity company trespassed by running power lines across private land without the owner's consent, and must pay Kshs.3.84 million in damages.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of plot number 514/R, Malindi, sued the Defendant electricity distributor for trespass after the Defendant entered the land in April 2009, erected poles and laid electric supply lines across sixteen of its sub-plots, depriving it of their use and enjoyment. The Plaintiff sought a declaration of trespass, a mandatory injunction to remove the lines, and general damages. The Defendant denied trespass, asserting it had erected poles on a public road after obtaining a way leave approval from the then Municipal Council of Malindi. The Plaintiff called its manager, a surveyor who produced a scaled print showing the poles stood within sixteen sub-plots and not on any road, and its director who produced the Indentures and Deed Plans evidencing ownership. The Defendant's Way Leaves Officer conceded knowledge of the Energy Act requirement for the landowner's permission and reliance on a Council sketch plan. The court found the Defendant's own sketch plan showed the line would pass over surveyed private land and that the Council's 'no objection' letter never authorized entry onto private property. The claim for indemnity against the Council failed because no third party notice was issued under Order 1 Rule 15. Judgment was entered for the Plaintiff with a declaration of continuing trespass, a mandatory injunction to remove the lines, a permanent injunction, damages of Kshs.3,840,000 (Kshs.4,000 per plot per month for five years over sixteen plots), interest, and costs.

Key legal issues

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01

Trespass by laying power lines on private land

Holding

The Defendant trespassed and continues to trespass on the Plaintiff's sixteen sub-plots

Reasoning

The court found the Plaintiff proved ownership through Indentures and a deed plan, and relied on the surveyor's scaled print showing the poles stood in the middle of sixteen plots rather than on a road. The Defendant's own sketch plan showed the line would pass over surveyed private land, so its claimed honest belief and Council approval did not avail it.

p. 4
02

Whether reliance on Municipal Council approval excuses the Defendant

Holding

No; the Council never authorized entry onto private land and the Defendant was itself aware the line crossed private plots

Reasoning

The Council's letter merely stated no objection to the intended work; the Defendant's sketch plan showed sub-plots and was not from the Survey Department. DW1 conceded knowledge of the Energy Act requirement of the owner's permission. The Defendant made no further enquiries and the indemnity claim failed for want of a third party notice.

p. 4
03

Quantum of damages for trespass

Holding

General damages of Kshs.4,000 per plot per month for five years over sixteen plots, totalling Kshs.3,840,000

Reasoning

The court accepted that the Plaintiff was deprived of developing and selling sixteen plots since 2009, adopted the Plaintiff's counsel's suggested Kshs.5,000 per plot per month as a reasonable estimate of lost income, and reduced it to Kshs.4,000 to account for the vagaries of development, computing damages over five years.

p. 5

Legal principles established

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  • Permission of the landowner is required before laying electric lines and poles on private land under the Energy Act
  • An indemnity claim against a party not joined as third party cannot arise

Court orders

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  1. 1.Declaration that the Defendant has trespassed and continues to trespass on the sixteen specified sub-plots in Malindi
  2. 2.Mandatory injunction compelling the Defendant or its successor to immediately remove the illegal supply lines from the parcels
  3. 3.Permanent injunction restraining the Defendant, its servants, employees and/or agents from entering or laying electric supply lines on the suit property
  4. 4.Damages for trespass of Kshs.3,840,000
  5. 5.Interest on the damages from the date of judgment until payment in full at court rates
  6. 6.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Energy ActSections 46 and 47
  • Civil Procedure RulesOrder 1 Rule 15

Cases cited (1)

  • Malindi HCCC No. 123 of 2009
Jurisdiction invoked
Original civil jurisdiction of the High Court in a claim for trespass to land

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, "Fleetwood Enterprises Limited v Kenya Power & Lighting Limited [2014] KEELC 99 (KLR)", Case Analysis (2014). Malindi HCCC (unspecified number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/99/eng@2014-11-07

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