Ahmed Sheikh Amin Msellem v Kenya Power & Lighting Company Ltd [2020] KEELC 3238 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that Kenya Power must remove power lines built on private land without permission and pay compensation for destroyed trees.
What this practically means
#Executive summary
#Key legal issues
#Liability of the 1st Defendant for the power line constructed by the 2nd Defendant
The 1st Defendant, having taken over and operated the line and having failed to prove the 2nd Defendant constructed it or disclose the handover terms, is liable for the continued unauthorised presence of the line on the Plaintiff's land
The 1st Defendant did not deny the line was erected without permission or that compensation was not paid. It did not place before the Court proof that the 2nd Defendant constructed the line, did not state when the line was handed over, and did not reveal the handover terms. Its application to enjoin the 2nd Defendant showed it sought indemnity, but having taken over the line it must take full responsibility for its continued existence on the land.
Effect of the 2nd Defendant's non-participation
The 2nd Defendant was formally joined but never served, entered no appearance and filed no defence; liability was nonetheless determined against the Defendants jointly as named
The court noted there was no evidence the 2nd Defendant was formally invited into the proceedings, and it neither entered appearance nor filed a defence. The court proceeded on affidavit evidence and held the suit merited against the Defendants, issuing declarations and orders referencing both Defendants.
Legal principles established
#- A party who has taken over and operates power lines built on land without the owner's permission and/or compensation bears full responsibility for their continued presence on the land, notwithstanding claims that another entity constructed them
Court orders
#- 1.A declaration that the actions of the Defendants in encroaching and constructing a power line over Plot No. 12 Group I Takaungu is unlawful, illegal and a violation of the Plaintiff's right to property
- 2.An order directing the Defendants to pull down and remove at their cost the power lines erected on the suit property
- 3.The Defendants to pay the Plaintiff Kshs 274,560 as compensation for damages occasioned by felling down mature trees on the suit property
- 4.The Plaintiff to have the costs of the Originating Summons
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution / ELC Act) - invoked by Originating Summons for declaration and orders over Plot No. 12 Group 1 Takaungu
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed Sheikh Amin Msellem v Kenya Power & Lighting Company Ltd [2020] KEELC 3238 (KLR)", Case Analysis (2020). Originating Summons dated 5th March 2015 (as amended on 1st November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3238/eng@2020-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.