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ELCPartially AllowedOriginating Summons dated 5th March 2015 (as amended on 1st November 2018)· [2020] KEELC 3238 (KLR)

Ahmed Sheikh Amin Msellem v Kenya Power & Lighting Company Ltd [2020] KEELC 3238 (KLR)

Environment and Land Court
28 February 2020
1,694 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, a beneficiary of the estate of Salim Bin Mbarak Dahman (registered owner of Plot No. 12 Group 1 Takaungu measuring 11.19 acres), sued by Originating Summons alleging that the Defendants encroached on the suit property in 2013 and constructed a 33 kV power line without his consent, destroying mature coconut, mango and cashew nut trees valued by a valuation report at Kshs 274,500, and diminishing the land's value. He sought a declaration that the encroachment was unlawful and a violation of his right to property, an order compelling removal of the power lines and restoration of the land, and compensation for the destroyed trees and loss of future income. The 1st Defendant (Kenya Power) denied encroaching, asserting the line was constructed by the Rural Electrification Authority (the 2nd Defendant), which was joined by order of 15th November 2017 on the 1st Defendant's application. The 2nd Defendant was never served, entered no appearance and filed no defence. The Court found the 1st Defendant did not deny the line was built without permission or that compensation was unpaid, did not prove the 2nd Defendant constructed the line, and did not disclose when or on what terms the line was handed over. Holding that the 1st Defendant, having taken over the line, must take full responsibility for its continued existence on the land, the Court declared the Defendants' actions unlawful and a violation of the Plaintiff's right to property, ordered removal of the lines at the Defendants' cost, awarded Kshs 274,560 as compensation for the felled trees, and awarded the Plaintiff the costs of the Originating Summons. No compensation was awarded for loss of future income.

Key legal issues

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01

Liability of the 1st Defendant for the power line constructed by the 2nd Defendant

Holding

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

Reasoning

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.

02

Effect of the 2nd Defendant's non-participation

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.An order directing the Defendants to pull down and remove at their cost the power lines erected on the suit property
  3. 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. 4.The Plaintiff to have the costs of the Originating Summons

Authorities

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Legislation

  • Energy ActSection 66
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.