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ELCDismissedKisii CMCC No. 235 of 2014 (appeal therein)· [2019] KEELC 4094 (KLR)

Kenya Power & Lighting Company Limited v Everlyne Mogotu Osugo [2019] KEELC 4094 (KLR)

High Court of Kenya
29 March 2019
2,513 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 get a landowner's permission before entering private land to lay power lines, or it commits trespass and pays damages.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. M. Nyaga, Resident Magistrate at Kisii, delivered on 4 February 2016 in Kisii CMCC No. 235 of 2014, in which the respondent, as plaintiff, recovered Kshs. 297,512/= special damages for 45 damaged eucalyptus trees and Kshs. 150,000/= general damages for trespass/loss of user against Kenya Power & Lighting Co. Ltd. The respondent alleged that the appellant entered her land without consent in February 2014 and constructed a power line, damaging trees later found on parcel West Kitutu/Bogusero/7531, a subdivision of her original parcel 604. The appellant, whose defence was a mere denial, offered no evidence at trial and appealed on liability, ownership, sufficiency of evidence and quantum. J. M. Mutungi, J, reappraising the evidence under the Selle principles, held that subdivision could not shift the trees and that the amendment of the plaint properly substituted parcel 7531. Relying on section 46 of the Energy Act, which requires the prior permission of the landowner before entry to lay electric supply lines, the court found that the appellant's uncontradicted absence of proof of permission or notice rendered its entry a trespass. The projected assessment of loss for immature trees was held appropriate, and the general damages award was not inordinately high given the restrictions the power line imposed on the land. The appeal was dismissed with costs to the respondent on 29 March 2019.

Key legal issues

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01

Liability for trespass by the power company

Holding

The appellant's entry onto the respondent's land in February 2014 without prior permission to lay electric power lines constituted trespass for which it was liable in damages.

Reasoning

Section 46 of the Energy Act requires prior permission of the landowner before entry to lay electric supply lines. The appellant's defence was a mere denial; it tendered no evidence at trial to contradict the respondent's testimony or to show that it had permission or gave notice of entry. Her evidence therefore remained unchallenged, and the trial magistrate was justified in accepting it.

p. 3
02

Effect of subdivision on identification of the suit land

Holding

Subdivision of parcel 604 into parcels 7531 and 7532 did not create a variance; the trees were on the portion that became parcel 7531, and the amendment of the plaint properly captured the change.

Reasoning

The respondent owned parcel 604, which was subdivided with the bulk (0.18Ha of 0.23Ha) forming parcel 7531 registered in her name. The trees could not 'shift' by reason of subdivision; the assessment report predated the subdivision. The court found no basis to disturb the trial magistrate's finding that the trees stood on the respondent's retained portion.

p. 2
03

Quantum of damages

Holding

The assessment based on projected loss of immature trees was appropriate and the award of Kshs. 150,000/= general damages for loss of user was not inordinately high.

Reasoning

The respondent cultivated blue gum trees as a commercial venture; since the overhead power line prevented the trees maturing, projection-based assessment was proper, there being no evidence the trees could not mature. Loss of user was real since the respondent could not build or plant under the lines.

p. 3
04

Duty of a first appellate court

Holding

The court reappraised the evidence but declined to interfere with the trial court's findings absent material misdirection.

Reasoning

Applying Selle v Associated Motor Boat Co. Ltd, the court reconsidered the evidence and drew its own conclusions while making due allowance for not having seen or heard the witnesses, and found the trial magistrate's findings justified on the evidence.

p. 2

Legal principles established

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  • On a first appeal the court must reappraise the evidence and draw its own inferences of fact, but should only interfere with findings of fact if the trial court materially misdirected itself.
  • Under section 46 of the Energy Act, entry upon land to lay or connect an electric supply line requires the prior permission of the landowner; entry without such permission constitutes trespass.
  • Evidence not rebutted by the defendant remains unchallenged notwithstanding cross-examination where the defendant offers no evidence.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Judgment of the trial magistrate (special damages Kshs. 297,512/= and general damages Kshs. 150,000/= with interest and costs) upheld

Authorities

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Legislation

  • Energy ActSection 46

Cases cited (5)

  • Selle & Another -vs- Associated Motor Boat Co. Ltd & Others
    [1968] E. A 123
  • Kenya Ports Authority vs- Kuston (Kenya) Ltd
    [2009] 2 E.A 212
  • PK Kenya Ltd -vs- Oppong
    [2009] KLR 442
  • Toyota (Kenya Ltd –vs- Express (Kenya) Ltd
    [2013] eKLR
  • Kiwanjani Hardware Ltd & Another -vs- Nicholas Mule Mutinda
    [2008] eKLR
On appeal from
Resident Magistrate's Court at Kisii
Kisii CMCC No. 235 of 2014
Jurisdiction invoked
First appeal from the Resident Magistrate's Court at Kisii

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, "Kenya Power & Lighting Company Limited v Everlyne Mogotu Osugo [2019] KEELC 4094 (KLR)", Case Analysis (2019). Kisii CMCC No. 235 of 2014 (appeal therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4094/eng@2019-03-29

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