Prinsal Enterprises Limited v Kenya Electricity Transmission Co. Limited [2018] KEELC 3045 (KLR)
The bottom line
#A Kenyan court ruled that power line wayleaves compensate only the affected strip of land, awarding Kshs 13.5 million instead of the claimed Kshs 66 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's entry onto the suit property and laying of electricity transmission power lines constituted a violation of the petitioner's right to property and an unlawful invasion/trespass
- 2.What compensation is adequate in respect of the portion of the suit property taken up by the electricity power lines
Key legal issues
#Whether the laying of electricity transmission lines on private land amounts to compulsory acquisition requiring compensation for the whole parcel
No - the laying of power lines is a wayleave acquisition conferring a limited right of use over the affected portion only, compensable at a percentage of the value of that portion, not the entire land
The court noted ownership was undisputed and that only 23.21% of the 4.55 ha parcel was affected. The respondent's survey showed the interest acquired was limited to prohibiting trees over 3.5m and building structures within the wayleave. The court adopted a 35% compensation rate applied to the respondent's open market value of Kshs 3.5 million per acre across 11 acres, rejecting the petitioner's whole-parcel valuation of Kshs 66 million.
Whether the respondent's entry onto the suit property constituted trespass and violation of the constitutional right to property
It was not trespass, as the respondent was unable to identify the proper parcel and its owner due to faulty land reference details and acted with a view to compensate
The respondent surveyed and valued the land in 2010 but could not trace the owner because the parcel was captured as LR 10080/1, a faulty reference. Other neighbouring parcels were compensated. Only in 2014 did the respondent identify the petitioner and make an offer of Kshs 3,196,555/-. The court accepted this explanation and held the entry was not a trespass, though compensation remained due for the use of the land.
Legal principles established
#- Compensation for wayleave acquisition is limited to loss of use of the affected portion of land rather than outright purchase of the entire parcel
- Entry onto land to lay electricity lines with an intention to compensate, occasioned by inability to identify the registered owner, does not constitute trespass
Court orders
#- 1.Judgment entered in favour of the petitioner in the sum of Kshs. 13,475,000/- to be paid by the respondent within 45 days from the date of delivery of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Petition alleging contravention of the fundamental right to property (constitutional petition)
Relief refused
#Declaration that the petitioner's fundamental right to property was violated, transgressed on and trampled upon by the respondent
The court found the entry was not trespass as the respondent could not identify the proper parcel owner at the time and was willing to compensate
Declaration that the respondent illegally and unlawfully invaded the petitioner's land
The respondent's actions were explained by faulty parcel identification and it did not claim ownership nor dispute traversing the land
Claim for compensation for the entire parcel of land (Kshs 66 million at Kshs 6 million per acre)
Only 23.21% of the parcel was actually used for the power lines; the court adopted the respondent's valuation of Kshs 3.5 million per acre
Claim for rental income at the rate of Kshs 300,000 per acre per month
The court declined to award anything towards rental income
Costs
Not expressly stated in the judgment; the petitioner had sought costs of the petition in the prayer but the disposition makes no costs order.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, judgment is entered in this suit in favour of the petitioner in the sum of Kshs. 13,475,000/- to be paid by the respondent within 45 days from the date of delivery of this judgment.
I will go with the value accorded by the respondent in to calculate their compensation value to be given to the petitioner by the respondent as 35% of 11 acres multiplied by the open market value at Kshs. 3.5 million to arrive at Kshs. 13,475,000/-.
In the circumstances I would find that this is not a case of trespass.
He noted that it is a generally accepted and standard practice that compensation for way leave acquisition is normally limited to loss of use of one's land without changing any transfer of the land as opposed to outright purchase
Issues in the judgment
#The judgment contains garbled/typographical passages, e.g. on the reason the petitioner could not be contacted and on the rental income award: "I will not want anything towards rental income." (apparently intended as 'I will not grant anything towards rental income').
The replying affidavit figures differ slightly between the offer letter (Kshs. 3,196,555/-) and the supplementary affidavit computation (Kshs. 3,197,250/-), and the respondent's 35% offer is described in one place as a 'higher rate of 35%'.
The disposition makes no express order on costs despite the petitioner's prayer for costs of the petition.
Signature and delivery dates differ: signed and dated 12th April 2018 by Justice Mary M. Gitumbi but delivered 19th April 2018 by Justice Samson Okongo.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prinsal Enterprises Limited v Kenya Electricity Transmission Co. Limited [2018] KEELC 3045 (KLR)", Case Analysis (2018). Petition dated 10th July 2014, filed 11th July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3045/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.