Ajit Bhogal v Kenya Power And Lighting Co. Ltd [2020] KEELC 449 (KLR)

The plaintiff's registered title was not disputed. Under Section 46 of the Electric Power Act, No. 11 of 1997, the repealed Wayleaves Act, and now Sections 46-47 and 52 of the Energy Act and Section 148 of the Land Act, 2012, a landowner's permission and compensation are required before laying electric supply lines. The defendant's own letters showed requests were refused, yet it entered and constructed the second line. Entry without lawful authority and without compensation is trespass, which continues as long as the line remains.

The plaintiff claimed Kshs.300,000,000 computed at Kshs.15,000,000 per year for 20 years, but pleaded no special damages and adduced no evidence of how the annual figure was derived or of the actual loss to the land. The court held such a claim is special damages neither pleaded nor proved, and awarded Kshs.20,000,000 as general damages, taking account of the evidence that about 1.5 acres had been denied the plaintiff since 1999 while the land remained in some use.

Applying Rookes v Barnard as approved in Obongo v Municipal Council of Kisumu, exemplary damages are limited to oppressive/arbitrary state action or profit-making conduct exceeding compensation payable. Here the defendant pleaded for the wayleave over time, forwarded standard wayleave agreement documents for execution, and built the line out of necessity for coastal power supply. That conduct was not malicious or arrogant, and aggravated damages, being compensatory, were also unwarranted on these facts.

The second 132 KV line is in place and supplies the coastal region from Rabai to Kipevu. Removing it would incapacitate the entire line and cause untold suffering to the populace and public facilities. The justice of the case, the court held, is that the defendant be given time to negotiate the wayleave/right of way with the plaintiff as the law provides, with liberty to apply reserved for both parties.

The joint survey ordered by the court was conducted on 15th March 2018 with both surveyors present, but the report was signed only by the plaintiff's surveyor, Mr. Mwendwa, and referred to Ketraco rather than the defendant. The court noted that the defendant's representative, Mr. Amunga, was never asked why he did not sign and filed no alternative report, so the objection could not stand and the report was taken as the joint position found on the suit property itself.