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ELCAllowedELC Civil Suit No. 538 of 2011· [2018] KEELC 2405 (KLR)

Kenya Power and Lighting Company Limited v Omar Abubkar Ali & 3 others [2018] KEELC 2405 (KLR)

Environment and Land Court
18 July 2018
AOA. Omollo
1,218 words in judgment
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The bottom line

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Kenya Power won its Mombasa case because the defendants never disproved its evidence — structures blocking a protected right of way must come down.

What this practically means

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Executive summary

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The plaintiff, Kenya Power & Lighting Company Ltd, sued four defendants seeking a mandatory injunction to demolish structures erected under high and low voltage power supply lines on a road reserve along Shelly Beach Road and on an access road between plots MMS/BLOCK I/240 and 241, a permanent injunction against further construction, costs, and interest. Only the 1st defendant entered appearance and filed a defence denying the claim and putting the plaintiff to strict proof; the 2nd to 4th defendants did not defend and interlocutory judgment was requested against them. The plaintiff called three witnesses who testified that the structures, some permanent and others temporary, blocked access to the plaintiff's submarine cables for maintenance; that the county government had demolished the structures in 2010 before they were rebuilt; and produced a letter of notification, the Registry Index Map showing the access road, and photographs of the obstruction. The 1st defendant closed his case without giving evidence and filed no submissions despite service. The court applied sections 107-109 of the Evidence Act, holding that facts put forth and not denied are presumed true, and found that the plaintiff had proved the existence of an access road to which it was entitled and its denial by unauthorised structures, additionally noting the danger to life of living under power lines. Judgment was entered for the plaintiff against the defendants jointly and severally as prayed in the plaint, including costs. Judgment was delivered at Mombasa on 18th July 2018 by A. Omollo J.

Key legal issues

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01

Proof of the plaintiff's claim on uncontroverted evidence

Holding

The plaintiff proved its case to the required standard through the RIM, photographs, correspondence and unchallenged testimony, establishing a right of way blocked by unauthorised structures.

Reasoning

The 1st defendant filed a defence but led no evidence and did not contest the plaintiff's witnesses or photographs in cross-examination. Applying sections 107-109 of the Evidence Act, the court held that facts put forth and not denied are presumed true. The Registry Index Map demonstrated the lawful existence of the access road, and prior notices to demolish were uncontradicted, so the plaintiff discharged the burden on a balance of probabilities.

p. 2
02

Entitlement to mandatory and permanent injunctions

Holding

Judgment was entered for the plaintiff against all defendants jointly and severally as prayed, granting both the mandatory injunction to demolish and the permanent injunction against further construction.

Reasoning

Having found the structures were erected without permission of the relevant agencies and obstructed access to the plaintiff's submarine cables, the court found the reliefs sought in the plaint justified. It also noted the danger to life posed by habitation under power lines, reinforcing the need for the protective orders sought.

p. 2

Legal principles established

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  • Facts alleged and not denied in evidence are presumed to represent the true state of affairs; a party asserting facts must prove them under sections 107-109 of the Evidence Act.

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants jointly and severally as prayed in the plaint
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the access road/right of way dispute (Environment and Land Court Act)

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, "Kenya Power and Lighting Company Limited v Omar Abubkar Ali & 3 others [2018] KEELC 2405 (KLR)", Case Analysis (2018). ELC Civil Suit No. 538 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2405/eng@2018-07-18

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