Green Power Generation Company v Kenya Power And Lighting Company &Another; [2020] KEELC 2839 (KLR)
The bottom line
#Kenya Power must pay Kshs 10 million for staying on land it no longer owned, showing courts will compensate landowners for state utility trespass.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Plaintiff's title to the suit property
The allocation to MEP and subsequent transfer to the Plaintiff were valid; no fraud or illegality was proved and the 1st Defendant cannot challenge the sub-division under Section 143 of the Registered Land Act.
The 1st Defendant was kept abreast of the allocation through its officers who attended the DDC meeting and through correspondence from its own engineers. Its plea that the transfer was clandestine and fraudulent was unsupported by evidence. Under Section 143 of the (repealed) Registered Land Act, the 1st Defendant could not challenge the sub-division and creation of the suit land in MEP's name. The Plaintiff, an innocent purchaser registered on 2nd July 2010, acquired good title.
Whether the 1st Defendant's continued occupation is trespass
Yes; having been given notice of the change of ownership, the 1st Defendant was bound to vacate and its continued stay, even after ceasing generation, amounts to trespass.
The 1st Defendant entered as agent of the Government but the Government had allocated the same land to MEP, which sold it openly after first offering it to the 1st Defendant. On notice of change of ownership the 1st Defendant ought to have vacated. Its continued occupation and use long after ceasing generation was wrongful and actionable trespass for which the Plaintiff is entitled to damages.
Quantum and nature of damages
General damages of Kshs 10,000,000/- awarded; exemplary damages and an order to purchase refused.
Although the environmental report did not isolate effects attributable solely to the 1st Defendant and the Plaintiff had not done due diligence, the 1st Defendant continued operating the plant well after suit was filed and denied the court information on its operations and profitability, even blocking access to the site. Taking account of the trespass, the plaintiff's inability to use the land and possible further damage on removal of plant, Kshs 10,000,000/- was reasonable general damages.
Legal principles established
#- Where the defendant has made use of the plaintiff's land, damages may be awarded as the sum reasonably payable for that use; exemplary damages lie only for oppressive, arbitrary or unconstitutional trespass by a government official or cynical disregard of the plaintiff's rights for gain.
- The measure of damages in trespass to land where damage is occasioned is diminution in value or cost of reinstatement.
Court orders
#- 1.A declaration that the continued occupation and use of the suit property by the Defendants from 2nd July 2010 is wrongful and actionable trespass
- 2.A declaration that the continued occupation and use of the suit property from 2nd July 2010 occasioned environmental degradation and diminution in value and the Defendants ought to atone by damages
- 3.General damages of Kshs 10,000,000/- to the Plaintiff with interest at court rates from the date of judgment until payment in full
- 4.The Plaintiff shall have the costs of the suit
- Jurisdiction invoked
- Original civil suit (trespass to land) before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Green Power Generation Company v Kenya Power And Lighting Company &Another; [2020] KEELC 2839 (KLR)", Case Analysis (2020). Plaint dated 4th September 2013, filed 10th October 2013 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2839/eng@2020-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.