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ELCPartially AllowedNot stated in judgment· [2018] KEELC 2553 (KLR)

Reuben Wanjala Mwanzo v kenya power & lighting company limited [2018] KEELC 2553 (KLR)

Environment and Land Court
29 June 2018
1,117 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Power was held liable for trespass after damaging a farmer's land, but the farmer's Kshs. 80,000 claim was slashed to Kshs. 35,000 because his valuer's expertise was unproven.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of 0.24 Ha being parcel Kakamega/Soy/1728, sued Kenya Power and Lighting Company for trespass, alleging that on or about 2 August 2013 the defendant's agents entered his land without notice or consent, destroyed fencing posts, barbed wire, trees and maize, and sought special and general damages plus a permanent injunction. The defendant admitted erroneously entering the land to erect a power line while supplying electricity to a neighbour, and offered Kshs. 7,080 by way of remediation and compensation, contending the claim should be dismissed. The court found the plaintiff is the proprietor and that the defendant cut the fence, dug three holes and damaged the maize without notice, with the defendant admitting the error. On quantum, the court found that both the plaintiff's assessor (PW2, Chesang) and the defendant's Wayleaves officer (Oboiko) failed to demonstrate expertise in valuing crops, trees and fencing posts, and that the assessor visited after the poles were removed and did not count the maize or posts. Nonetheless, on the evidence the court found 200 mature maize stalks, 4 fencing posts and one roll of barbed wire were destroyed. It awarded special damages of Kshs. 25,000 and general damages of Kshs. 10,000, a total of Kshs. 35,000, plus costs and interest. Judgment dated and delivered at Eldoret on 29 June 2018 by A. Ombwayo, J.

Key legal issues

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01

Trespass by the defendant's agents

Holding

Trespass established; the defendant entered without notice or consent while supplying electricity to a neighbour

Reasoning

The court found the plaintiff is the registered proprietor of Kakamega/Soy/1728. The defendant, while supplying electricity to the plaintiff's neighbour, cut the barbed wire fence, dug three holes and damaged maize without notice to the plaintiff. The defendant admitted the error and offered compensation, confirming liability. The dispute was confined to quantum.

p. 2
02

Weight of valuation/assessment evidence

Holding

Neither the plaintiff's assessor nor the defendant's Wayleaves officer proved expertise in valuing crops, trees and fencing posts

Reasoning

PW2 did not produce documentary proof of his qualifications as a valuer, did not measure the land, did not count the maize or the posts, and visited after the poles had been removed. The court doubted his status as a valuer. The defendant's Wayleaves officer equally did not demonstrate expertise in valuing crops, trees and fencing posts, so neither valuation could be adopted wholesale.

p. 2
03

Quantum of damages

Holding

Special damages of Kshs. 25,000 and general damages of Kshs. 10,000 awarded, totaling Kshs. 35,000

Reasoning

Having rejected the competing expert valuations for lack of demonstrated expertise, the court nonetheless found from the record that 200 mature maize stalks, 4 fencing posts and one roll of barbed wire were destroyed, and made its own global assessment of special damages, with a modest award of general damages for the trespass.

p. 2

Legal principles established

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  • A person who claims special damages must prove both the loss and the competence of the valuer relied upon; unproven expertise undermines the valuation evidence.
  • Entry onto private land to erect power lines without notice or consent is a trespass for which the entrant is liable to compensate even where it admits the error.

Court orders

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  1. 1.Special damages of Kshs. 25,000 awarded to the plaintiff
  2. 2.General damages of Kshs. 10,000 awarded to the plaintiff
  3. 3.Total award of Kshs. 35,000 plus costs and interest
Jurisdiction invoked
Not expressly stated; original civil jurisdiction over the trespass and damage claim

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, "Reuben Wanjala Mwanzo v kenya power & lighting company limited [2018] KEELC 2553 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2553/eng@2018-06-29

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