Samwel Motari Nyambati v Kenya Power and Lighting Company [2018] KEELC 4661 (KLR)
The bottom line
#The High Court in Kisii ruled that Kenya Power must move a power line to the edge of a farmer's land at its own cost, though no damages were awarded.
What this practically means
#Executive summary
#Key legal issues
#Trespass by erection of power line
No trespass established because the plaintiff gave written consent for the way leave on 25th July 1996, ratifying any initial unlawful entry
The court found the defendant entered before consent, prompting CMCC No. 860 of 1995, but in the settlement the plaintiff through his advocate agreed to accept compensation and grant a way leave, and signed an irrevocable consent dated 25th July 1996. Having ratified the entry, the plaintiff could not maintain trespass, and damages for trespass were therefore unavailable.
Limitation
Suit not time barred as the alleged trespass was continuing
Although a cause of action founded on trespass must be brought within three years, the defendant remained on site and the trespass was continuing, entitling the plaintiff to sue; however, no order for removal of the power line had been sought, and the damages claims failed on res judicata in any event.
Res judicata / abuse of process
The damages claims were res judicata having been raised and settled in Kisii CMCC No. 860 of 1995
The earlier suit claimed general damages for trespass and compensation for damaged crops and was settled by consent. Issues of damages were directly in issue or ought to have been raised there; Order 3 rule 4 requires the whole claim to be included in one suit, so reliefs omitted cannot be sued for later under Section 7 of the Civil Procedure Act.
Re-routing of the power line and cost
The defendant must re-route the line to the boundary at its own cost within 60 days
The consent did not show the layout of the line; the defendant acted without due care in running the line through the middle of the parcel, restricting its use, when it could have run along the boundary. The defendant's own report confirmed re-routing was feasible. The burden of the re-routing cost could not be shifted to the plaintiff.
Legal principles established
#- A plaintiff must plead his entire claim in one suit; claims arising from the same cause of action cannot be litigated in instalments (Order 3 rule 4, Civil Procedure Rules)
- A claim for damages raised and settled in a previous suit is res judicata under Section 7 of the Civil Procedure Act
- A continuing trespass is not defeated by limitation so long as the defendant remains on the land
- A utility erecting a power line has a duty to align it so as to least compromise the landowner's use of the land, and an unsigned/unaccompanied consent cannot shift re-routing costs to the owner
Court orders
#- 1.The plaintiff's claims for general damages and for loss of user are disallowed
- 2.The defendant is directed and ordered, within sixty (60) days of the judgment, to re-route the power line running through the plaintiff's land parcel Bassi/Boitangare/972 so that it runs as close as possible to the boundary and/or hedges of the parcel
- 3.The cost of re-routing and realigning the power line along the boundary of land parcel Bassi/Boitangare/972 to be borne by the defendant
- 4.The costs of the suit are awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over a claim in trespass and loss of user (suit filed 2001 under the former procedural regime; no specific constitutional provision invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Motari Nyambati v Kenya Power and Lighting Company [2018] KEELC 4661 (KLR)", Case Analysis (2018). HCCC (Kisii) - plaint dated 27th September 2001 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4661/eng@2018-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.