George Joseph Kang’ethe & another v Kenya Power and Lighting Company Limited [2020] KEELC 1608 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered Kenya Power to pay two Ngong landowners KES 40 million for running power lines across their land without consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant trespassed on the Plaintiffs' parcels Ngong/Ngong/15677 and 15678
The Defendant's unauthorized entry and construction of power lines without the Plaintiffs' consent amounted to continuous trespass
Ownership was undisputed per certificates of title. The Defendant filed a defence but presented no evidence to controvert the Plaintiffs' testimony or the photographs showing power lines traversing the land, nor to show another entity erected them. It never sought consent as required by sections 171 and 173 of the Energy Act and section 3 of the Trespass Act. Entry and continued occupation from 2013 constituted a continuing trespass.
Whether the Plaintiffs are entitled to the reliefs sought, including injunction and damages
General damages of Kshs. 4 million and compensatory damages of Kshs. 36 million awarded; injunction refused
Trespass being actionable per se, general damages were due; the court adopted Kshs. 4 million given seven years of occupation. Special damages were unproved, but the uncontradicted Valuation Report supported compensation: Kshs. 24 million for loss of use of two acres (valued at Kshs. 12 million per acre) and Kshs. 12 million for unusable houses. Injunction was declined because the lines serve Magadi Soda and compensation was given instead.
Legal principles established
#- Once trespass to land is established it is actionable per se and no proof of damage is necessary for the court to award general damages
- An entity entering private land to lay electric supply lines requires the prior consent of the landowner under the Energy Act
- Special damages must be specifically proved by credible evidence, not merely pleaded
Court orders
#- 1.A declaration that the Defendant has trespassed on the suit properties without the Plaintiffs' consent and caused permanent and irreparable damages thereto
- 2.General damages for continuous trespass awarded at Kshs. 4 million
- 3.Compensatory damages awarded at Kshs. 36 million
- 4.Costs of the suit awarded to the Plaintiffs
- 5.Interest on the damages and costs until payment in full
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over trespass claims relating to land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Joseph Kang’ethe & another v Kenya Power and Lighting Company Limited [2020] KEELC 1608 (KLR)", Case Analysis (2020). ELC Case No. 797 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1608/eng@2020-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.