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ELCPartially AllowedCivil Suit No. 151 of 2013· [2018] KEELC 1933 (KLR)

Samuel Mwangi Mburu v Kenya Power & Lighting Company Limited [2018] KEELC 1933 (KLR)

Environment and Land Court
21 September 2018
2,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya Power lost a trespass case for running a power line over private land without the owner's consent.

What this practically means

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Executive summary

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The plaintiff, registered owner of plot Kwale/Ukunda/50, sued Kenya Power & Lighting Company for trespass and infringement of his property rights after the defendant erected a low voltage power line which he said crossed his plot, stalling his development at foundation level. He sought a permanent injunction, declarations of trespass and breach of Article 40(1) and (3) of the Constitution, an order compelling removal or re-routing of the line, damages and costs. The defendant denied the line was on the plaintiff's plot, maintaining it ran through adjacent plot No. 47, whose owner Ali Abdalla had signed way leaves, and pleaded honest mistake compensable by way leave payment. Both sides called surveyors. The government District Surveyor produced a map showing the line traversing plot 50, while the defendant's surveyor located the poles on plots 47 and 48 but contradicted himself. The court made a site visit, observed the line passing directly above the plaintiff's foundation, and credited the plaintiff's survey evidence, noting that neither the owners of plots 47 nor 48 had ever claimed the plaintiff's foundation encroached on their land. Applying section 18 of the Land Registration Act, the court held the defendant had no function in determining boundaries and erred in doing so without government officers. The defendant, having never obtained the plaintiff's consent, was found guilty of trespass. Judgment was entered as prayed in prayers (a) to (d), with general damages of Kshs 300,000 and costs of the suit to the plaintiff.

Key legal issues

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01

Whether the power line traverses the plaintiff's plot Kwale/Ukunda/50

Holding

The court found that the power line traverses the plaintiff's plot, preferring the government surveyor's report (PW1) over the defendant's survey reports, corroborated by the court's own site visit

Reasoning

The District Surveyor Kwale produced a map marking the power line in red showing it on plot No. 50. The court visited the site and observed the power line passing directly above the plaintiff's foundation. Neither the owner of plot 47 nor any neighbour filed a claim alleging the plaintiff's foundation encroached on their land, undermining the defendant's survey evidence.

p. 3
02

Whether the defendant committed trespass by erecting the power line without the plaintiff's consent

Holding

The defendant was guilty of trespass as it never obtained the plaintiff's consent to erect the power line on his land

Reasoning

The defendant relies on way leaves and the goodwill of landowners. It obtained a signed way leave from Ali Abdalla, owner of plot 47, but never sought the plaintiff's consent. Its own surveyor contradicted himself, and its survey was conducted without a government land registrar or surveyor, so its boundary findings were erroneous.

p. 3
03

The credibility and propriety of the defendant's survey report

Holding

The defendant's surveyor erred by purporting to determine boundaries without a government land registrar or surveyor, and his report contradicted his own evidence in chief

Reasoning

DW4 visited the grounds on 12.8.2013 unaccompanied by any government land registrar or surveyor, yet concluded the plaintiff's development encroached on plots 46, 47 and 2743. His conclusion that the power line was on plots 47 and 48 contradicted his testimony that on the ground it fell on plot 50.

p. 2

Legal principles established

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  • Under section 18 of the Land Registration Act, it is not the function of a private party such as the defendant to determine boundaries of people's plots
  • Erecting a power line on private land without the owner's consent constitutes trespass

Court orders

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  1. 1.Judgment entered for the plaintiff as prayed in prayers (a) to (d) of the plaint
  2. 2.A permanent injunction restraining the defendant, its servants, agents and workmen from interfering in any way with the plaintiff's plot No. Kwale/Ukunda/50
  3. 3.A declaration that the defendant contravened the plaintiff's right to property under Article 40(1) and (3) of the Constitution
  4. 4.An order compelling the defendant to remove the power line illegally installed in the plaintiff's parcel Kwale/Ukunda/50
  5. 5.A declaration that the defendant committed acts of trespass
  6. 6.General damages of Kshs 300,000 as reasonable compensation
  7. 7.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 18
  • Constitution of Kenya, 2010Article 40(1) and (3)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (trespass and interference with plaintiff's parcel Kwale/Ukunda/50); constitutional claim under Article 40(1) and (3) of the Constitution

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, "Samuel Mwangi Mburu v Kenya Power & Lighting Company Limited [2018] KEELC 1933 (KLR)", Case Analysis (2018). Civil Suit No. 151 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1933/eng@2018-09-21

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