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ELCPartially AllowedPlaint dated 10th June, 2003 (Machakos)· [2019] KEELC 4352 (KLR)

Kenya Power & Lighting Company Limited & another v BM Wambua [2019] KEELC 4352 (KLR)

Environment and Land Court
28 February 2019
OAO.A. Angote
1,380 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya Power lost a landowner's case after entering private land to lay power lines without permission or notice, and must pay Kshs. 2,785,000 plus interest and costs.

What this practically means

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Executive summary

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The Plaintiff, a power transmission utility, sued in 2003 seeking an injunction to restrain the Defendants from interfering with the laying of a 220KV transmission line from Kiambere Dam to Dandora across Plot No. 3-784, curved out of L.R. No. 10967 owned by Mukaa Mukuu Farmers Co-operative Society Limited. The Defendants, by an Amended Defence and Counter-claim, contended that the suit land is Plot No. 8-003, registered in the name of the deceased 1st Defendant; that no compensation was ever agreed; that the Plaintiff entered without permission or the statutory notice; and claimed Kshs. 2,785,000 per a valuation report dated 15th July, 2015, covering sterilized land (2.1 acres), trees and crops, mesne profits and a house requiring relocation. At the hearing, the Plaintiff and its advocate were absent; its suit was dismissed with costs for want of prosecution and the Counter-claim proceeded. The court found the Defendants' ownership and the Plaintiff's unlawful entry uncontroverted. Applying Section 45 of the Electric Power Act, Cap 314 (in force when suit was filed, since repealed by the Energy Act, 2006), the court held that the landowner's permission and notice with particulars were required before entry, and neither occurred. The unrebuted valuation of Kshs. 2,785,000 was adopted. The Counter-claim was allowed: compensation of Kshs. 2,785,000 with interest at court rates from 15th July, 2015 until payment in full, and the Plaintiff to pay the costs of the suit and Counter-claim.

Key legal issues

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01

Whether the Plaintiff's entry onto the suit land without consent or notice was lawful

Holding

The Plaintiff was required to obtain the landowner's permission and give notice with particulars of entry under Section 45 of the Electric Power Act, Cap 314; neither happened

Reasoning

The court applied Section 45 of the Electric Power Act, Cap 314 (the statute in force when the suit was filed in 2003, later repealed by the Energy Act, 2006). The provision required notice accompanied by a statement of particulars, and the owner could assent upon payment of agreed compensation. Since neither notice nor assent occurred, the Plaintiff's entry and construction of the transmission line over Plot No. 8-003 was unlawful, entitling the Defendants to compensation.

p. 2
02

Quantum of compensation for loss of user of the affected land

Holding

The Defendants are entitled to Kshs. 2,785,000 as per the uncontroverted Valuation Report of 15th July, 2015, with interest from the date of the valuation

Reasoning

The Plaintiff did not rebut the Defendants' evidence. The Valuation Report itemized sterilized land (2.1 acres) at Kshs. 1,400,000, trees/crops at Kshs. 310,000, mesne profits at Kshs. 75,000 and a house at Kshs. 1,000,000, totalling Kshs. 2,785,000. Unchallenged, this assessment was adopted as the measure of compensation.

p. 2

Legal principles established

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  • An electric utility must obtain the landowner's permission and serve notice with particulars before entering land to lay electric supply lines under the (repealed) Electric Power Act, Cap 314

Court orders

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  1. 1.The Defendants to be paid Kshs. 2,785,000 by the Plaintiff being compensation for the use of a portion of L.R No. 8-003
  2. 2.The Plaintiff to pay interest on the above amount from 15th July, 2015 (the date of the Valuation) at court rates until payment in full
  3. 3.The Plaintiff to pay the costs of the suit and the Counter-claim

Authorities

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Legislation

  • Electric Power Act, Cap 314Section 45
  • Energy Actrepeal of Electric Power Act (2006)
Jurisdiction invoked
Original civil jurisdiction over the Defendants' Counter-claim concerning land in Machakos County

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 & another v BM Wambua [2019] KEELC 4352 (KLR)", Case Analysis (2019). Plaint dated 10th June, 2003 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4352/eng@2019-02-28

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