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ELCAllowedPlaint dated 30th March, 2010· [2019] KEELC 3794 (KLR)

Daniel Musau Mbithi v Kenya Power & Lighting Co. Ltd [2019] KEELC 3794 (KLR)

Environment and Land Court
29 March 2019
944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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In a plaint dated 30th March 2010, the Plaintiff, the registered proprietor of commercial plot Ndalani/Ndalani/140, sued the Defendant, a power company, alleging that its workmen trespassed on his land and unlawfully passed overhead power lines through it without his consent. He sought an order compelling the Defendant to remove the power line. The Defendant denied the claim, contending the suit was bad in law and that no intention to sue was served on it. At trial the Defendant called no evidence. The Plaintiff testified that he purchased the suit land by agreements of 17th February 2007 and 17th September 2013, and that although his Title Deed issued on 24th January 2018, after the suit was filed, the land itself was registered on 15th April 1992. The Plaintiff's counsel relied on Section 24(c) of the Land Registration Act, while the Defendant's counsel argued that the Plaintiff was not registered owner when he filed suit and that transmission lines constitute an overriding interest under the Land Registration Act. The court held that since the land was private land registered in 1992, the late issuance of the title deed did not matter. Section 53 of the Energy Act, 2006 permits electric lines only over public property; lines over private land require compulsory acquisition and compensation under Section 54. The Defendant neither acquired the land nor obtained consent, and offered no controverting evidence. The court found the claim proved on a balance of probability and ordered the Defendant to remove its electric supply line and poles from Ndalani/Ndalani/140, with costs to the Plaintiff.

Key legal issues

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01

Whether the Defendant's electric line over private land without compulsory acquisition or consent was lawful

Holding

The Defendant's conduct amounted to trespass; the Plaintiff proved his case on a balance of probability and is entitled to removal of the line and poles.

Reasoning

Section 53 of the Energy Act, 2006 permits laying electric supply lines over public property only. For private land, the Defendant must compulsorily acquire the land and pay compensation under Section 54. The Defendant neither acquired the land nor obtained the proprietor's permission, and adduced no evidence to controvert the Plaintiff's case, so the claim succeeded.

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02

Whether the Plaintiff's ownership was invalidated by the late issuance of his Title Deed

Holding

No. The land was registered as private land in 1992 and the Plaintiff purchased it in 2007, so the 2018 issuance of the Title Deed did not defeat his ownership.

Reasoning

The court found that the Plaintiff bought the land first from Richard Mutuku Mutisya in 2007 and later from Masaku Nelson Kiloli in 2013. Although the title deed issued on 24th January 2018, after suit, the land itself was registered on 15th April 1992. The Defendant led no evidence on the circumstances of its line or to displace the Plaintiff's ownership.

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Legal principles established

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  • A licensee under the Energy Act may pass electric lines over public property but must compulsorily acquire private land and pay compensation before passing lines over it
  • A registered proprietor's ownership is not defeated by the later issuance of the title deed where the land was registered before suit

Court orders

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  1. 1.An order compelling the Defendant to remove its electric supply line and pole(s) from the Plaintiff's parcel of land known as Ndalani/Ndalani/140
  2. 2.The Defendant to pay the costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 24(c)
  • Energy Act, 2006Section 53
  • Energy Act, 2006Section 54
Jurisdiction invoked
Original civil jurisdiction over a claim for trespass and removal of electric supply lines from registered private land (Environment and Land Court)

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, "Daniel Musau Mbithi v Kenya Power & Lighting Co. Ltd [2019] KEELC 3794 (KLR)", Case Analysis (2019). Plaint dated 30th March, 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3794/eng@2019-03-29

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