Samuel Mwangi Mburu v Kenya Power & Lighting Company Limited [2018] KEELC 1933 (KLR)
The bottom line
#Kenya Power lost a trespass case for running a power line over private land without the owner's consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the power line traverses the plaintiff's plot Kwale/Ukunda/50
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
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.
Whether the defendant committed trespass by erecting the power line without the plaintiff's consent
The defendant was guilty of trespass as it never obtained the plaintiff's consent to erect the power line on his land
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.
The credibility and propriety of the defendant's survey report
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
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.
Legal principles established
#- 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
#- 1.Judgment entered for the plaintiff as prayed in prayers (a) to (d) of the plaint
- 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.A declaration that the defendant contravened the plaintiff's right to property under Article 40(1) and (3) of the Constitution
- 4.An order compelling the defendant to remove the power line illegally installed in the plaintiff's parcel Kwale/Ukunda/50
- 5.A declaration that the defendant committed acts of trespass
- 6.General damages of Kshs 300,000 as reasonable compensation
- 7.Costs of the suit to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.