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ELCPartially AllowedELC NO. 87 OF 2013· [2018] KEELC 3776 (KLR)

Jackson Onyango Odiek & another v Kenya Power and Lighting Co Limited [2018] KEELC 3776 (KLR)

High Court of Kenya
11 April 2018
1,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Power must remove a pole and cables it erected on private land after failing to prove the owner had consented.

What this practically means

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Executive summary

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The two Plaintiffs, the registered owner and the previous owner respectively of land parcel No. MARACHI/BUMALA/1666, sued Kenya Power & Lighting Co. Ltd for encroachment, alleging that the Defendant erected an electric pole on the parcel and ran power lines over it diagonally without their authority. They sought removal of the pole and cable, mesne profits or, in the alternative, payment of the price of the land, plus costs. The Defendant denied the claim, and at trial its sole witness, DW1, gave evidence but cross-examination was deferred to allow a court site visit. After the site visit, which confirmed the pole and overhead cables on the Plaintiffs' plot and that the plots border each other, the Defendant disputed the map used to identify the parcel and promised to avail a correct one but never did. DW1 never returned; the defence case was closed after repeated adjournments. In written submissions the Defendant contended it had consent from the original owners of the land when it was parcel No. 286, but the court found no consent document or supporting witness was availed and that this averment appeared nowhere in the pleadings or evidence. Holding the Plaintiffs' case proved on a balance of probabilities, the court granted prayers (a) and (b) of the plaint. The mesne profits claim was refused for want of evidence, and the question of compensation or purchase of the land at market rates was left for the parties to explore. Judgment delivered on 11 April 2018 by A. K. Kaniaru, Judge.

Key legal issues

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01

Encroachment on registered land without consent

Holding

The Plaintiffs proved on a balance of probabilities that the Defendant erected an electric pole and ran cables over parcel No. 1666 without their authority, entitling them to removal of the pole and cable

Reasoning

The court was satisfied from the pleadings, testimony and site visit that the pole stands on the Plaintiffs' plot and cables run over it diagonally, impeding development. The 2nd Plaintiff, the previous owner, denied giving consent, and the defence produced no consent document. The defence case was closed without cross-examination of DW1, lowering the evidential value of his testimony. The defence submissions asserting consent from original owners of the old parcel No. 286 had no foundation in pleadings or evidence.

p. 3
02

Weight of incomplete defence evidence

Holding

The uncross-examined evidence of DW1 was given little weight because the witness failed to avail himself for cross-examination

Reasoning

Cross-examination was deferred to allow a site visit, but after the site visit DW1 never returned to court. The matter was adjourned three times, with two last adjournments, until the court declined a further adjournment and closed the defence case. The court held that evidence never interrogated by cross-examination carries a lowered premium, making reliance on it unsafe. This contributed to the failure of the defence case.

p. 2
03

Dispute over identity of the disputed land

Holding

The defence claim that the Plaintiffs' plot lay elsewhere failed because the promised correct map was never availed

Reasoning

At the site visit, land officials identified the disputed land using the map supplied by the Plaintiffs. The Defendant disputed that map and promised to avail a correct one but never did. The site visit confirmed the pole and overhead cables on the plot. The court treated the failed promise and the absence of the promised map as detracting from the defence position.

p. 2

Legal principles established

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  • A party asserting consent or permission on whose strength it entered another's land must avail evidence of that consent, either the document itself or the person who granted it; otherwise the averment fails
  • The evidence of a witness who was never cross-examined carries diminished weight and reliance on it is unsafe
  • Submissions containing averments without foundation in pleadings or evidence carry no weight

Court orders

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  1. 1.Prayer (a) in the plaint granted - removal of the electric pole and cable from the disputed land
  2. 2.Prayer (b) in the plaint granted
  3. 3.Prayer for mesne profits declined for lack of evidence
  4. 4.Parties left to explore compensation or purchase of the land at market rates between themselves
Jurisdiction invoked
Original civil jurisdiction of the High Court, Environment and Land Division, over the land dispute

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, "Jackson Onyango Odiek & another v Kenya Power and Lighting Co Limited [2018] KEELC 3776 (KLR)", Case Analysis (2018). ELC NO. 87 OF 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3776/eng@2018-04-11

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