Noorlands Limited v Kenya Power & Lighting Co. Limited [2016] KEELC 382 (KLR)
The bottom line
#Kenya Power won because the landowner's attorney lacked power to testify in court, and the company proved no damages from its power lines.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the donee of a power of attorney to testify for the plaintiff
The power of attorney was a specific one authorising completion of a sale and transfer to the donee himself; it contained no power to give evidence in court, so the plaintiff's only evidence was incompetent and the suit would fail on that ground alone
The court construed the power of attorney dated 8th July 2008 (Pex 2) and found it empowered the donee only to complete the sale and transfer of the land to himself for Kshs 12 Million and to do acts connected with completion and registration. Order 9 of the Civil Procedure Rules recognises holders of powers of attorney as agents, but the donee's authority must appear from the instrument. Since no clause permitted litigation testimony, the plaintiff's case rested on no valid evidence.
Whether the defendant's supply of electricity without the registered owner's wayleave constituted actionable trespass causing loss
Although the plaintiff was the registered owner and did not sign the wayleaves, the defendant acted under wayleaves executed by village elders/headmen during a World Bank-funded slum electrification project, honestly believing the occupants owned the land, and the area was already built up; damages were not proved
The defendant traced the owner at the lands office without success, obtained executed wayleaves from village elders, received a list of 341 residences before erecting poles, and encountered no objection. The court found the structures belonged to the occupants, not the defendant, there was no evidence of trees cut, and no proof that squatters increased because of the power supply. Any interference with the plaintiff's use was attributable to the occupants, whom the plaintiff had already sued separately.
Timing of the mandatory injunction to remove supply lines
The injunction was premature and shelved because the plaintiff had not obtained vacant possession from the squatters
The court took the view that public sense favoured issuing prayer (a) only after the plaintiff obtained an order for vacant possession from the squatters, since the defendant would as a matter of course remove its poles upon the squatters' eviction. The related suit against the occupants (HCC 101 of 2009) remained unconcluded.
Legal principles established
#- A donee of a power of attorney can only act within the powers donated; a specific power of attorney for completing a sale and transfer does not authorise the donee to give evidence in court on behalf of the donor
- A plaintiff must prove its case on a balance of probabilities, including capacity of its witness and its averred damages
Court orders
#- 1.Dismissal of the plaintiff's suit
- 2.Costs of the suit awarded to the defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (land/trespass dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Noorlands Limited v Kenya Power & Lighting Co. Limited [2016] KEELC 382 (KLR)", Case Analysis (2016). ELC Case No. 287 of 2013 (formerly Civil Suit No. 448 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/382/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.