Kenya Power & Lighting Company Limited v Everlyne Mogotu Osugo [2019] KEELC 4094 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Liability for trespass by the power company
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.
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.
Effect of subdivision on identification of the suit land
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.
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.
Quantum of damages
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.
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.
Duty of a first appellate court
The court reappraised the evidence but declined to interfere with the trial court's findings absent material misdirection.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Judgment of the trial magistrate (special damages Kshs. 297,512/= and general damages Kshs. 150,000/= with interest and costs) upheld
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.