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ELCPartially AllowedELC Case No. 869 of 2017· [2020] KEELC 1622 (KLR)

Eunice Nkirote Ringera v Kenya Power & Lighting Company [2020] KEELC 1622 (KLR)

Environment and Land Court
27 July 2020
COChristine Ochieng
3,484 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya Power must pay a Ngong landowner Kshs. 14 million for building power lines on her land without consent, though it keeps the lines.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Ngong/Ngong/15676, sued the Kenya Power and Lighting Company alleging that from around 2013 the defendant entered her land without consent, cut down trees, dug holes and erected concrete poles with high voltage power cables, rendering her unable to develop or sell the land. She sought a declaration of trespass, a mandatory injunction to remove the poles and cables, general and compensatory damages, costs and interest, particularising loss at Kshs. 16,750,000 and later claiming mesne profits of Kshs. 100,000 per month. The defendant denied the claim, asserting it did not carry out the works and that the plaintiff did not prove its involvement; it tendered no evidence at trial but in submissions conceded general damages of Kshs. 100,000. The court framed two issues: trespass and entitlement to reliefs. It found the plaintiff's ownership and the presence of power lines undisputed, and held that the defendant, having adduced no evidence, failed to discharge the burden of showing consent as required by sections 171 and 173 of the Energy Act Cap 1 of 2019 and section 3 of the Trespass Act. The erection of the lines without consent amounted to a continuous trespass since 2013. On quantum, the court awarded general damages of Kshs. 2 million for seven years of continuous trespass, applying authority that trespass is actionable per se. The plaintiff's particularised compensatory damages and mesne profits claim failed for want of evidentiary proof, but the court, relying on the uncontroverted Icon Valuers valuation of Kshs. 12 million per acre for the 24-million value property split in half by the power lines, awarded Kshs. 12 million compensatory damages for loss of use of one acre. The injunction for removal of the poles was declined as compensation covered the utilised portion, and the court suggested a structured Wayleave Agreement. The suit succeeded partially: declaration, damages, costs and interest were granted; removal of the infrastructure was not ordered.

Key legal issues

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01

Whether the Defendant trespassed on the suit land

Holding

Yes - the Defendant's construction of high voltage power lines on the suit land without the Plaintiff's consent amounted to a continuous trespass

Reasoning

The Plaintiff's registered ownership was undisputed and high voltage power lines had been constructed on the land. The Defendant denied carrying out the works and adduced no evidence. The court applied sections 171 and 173 of the Energy Act Cap 1 of 2019 and section 3 of the Trespass Act, holding that the burden lay on the Defendant to prove consent, and found the acts amounted to illegal entry and continuous trespass since 2013.

p. 2
02

Whether the Plaintiff is entitled to the orders sought

Holding

Partially - general damages of Kshs. 2 million and compensatory damages of Kshs. 12 million awarded; injunction declined; particularised damages and mesne profits not proved

Reasoning

Relying on precedent that trespass is actionable per se, the court awarded general damages of Kshs. 2 million for seven years of continuous trespass. Particularised compensatory damages and mesne profits failed for want of proof, but the court based quantum on the uncontroverted Valuation Report, awarding the value of one acre (Kshs. 12 million) for loss of use, the power lines splitting the two-acre property in half.

p. 4

Legal principles established

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  • Construction of a wayleave on private land requires the consent of its owner
  • Trespass to land is actionable per se and no proof of damage is necessary for an award of general damages
  • Special damages must be proved by credible evidence and not merely pleaded

Court orders

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  1. 1.A declaration be and is hereby issued that the Defendant has trespassed on the suit property without the Plaintiff's consent and caused permanent and irreparable damages thereto
  2. 2.General damages for the continuous trespass be and is hereby awarded at Kshs. 2 million
  3. 3.Compensatory damages be and is hereby awarded at Kshs. 12 million
  4. 4.Costs of the suit is awarded to the Plaintiff
  5. 5.Interest on (ii), (iii) and (iv) above until payment in full

Authorities

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Legislation

  • Energy Act, 2006section 46
  • Energy Act Cap 1 of 2019sections 171 and 173
  • Trespass Actsection 3

Cases cited (11)

  • John Kiragu Kimani vs Rural Electrification Authority
    (2018) eKLR
  • Duncan Nderitu Ndegwa vs. Kenya Pipeline Company Limited & Another
    (2013) eKLR
  • Samwel Motari Nyambati vs KPLC
    (2018) eKLR
  • Kenya Tourist Development Corporation vs. Sundowner Lodge Limited
    (2018) eKLR
  • Obadiah k. Macharia vs. Kenya Power and Lighting Company Ltd
    (2016) eKLR
  • Eliud Njoroge Gachiri vs. Stephen Kamau Nganga
    elc no. 121 of 2017
  • Fleetwood Enterprises Ltd v Kenya Power & Lighting Co. Ltd
    [2015] eKLR
  • Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited
    [2017] eKLR
  • Capital Fish Kenya Limited Vs The Kenya Power & Lighting Company Limited
    [2016] eKLR
  • Ryce Motors Ltd & Another vs Muchoki
    (1995-98) 2 E. A 363 (CAK)
  • SJ vs. Francesco Di Nello & Another
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land dispute); no specific provision invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eunice Nkirote Ringera v Kenya Power & Lighting Company [2020] KEELC 1622 (KLR)", Case Analysis (2020). ELC Case No. 869 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1622/eng@2020-07-27

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