Moses Bii v Kenya Power and Lighting Company Limited [2021] KEELC 4193 (KLR)
The bottom line
#Kenya Power was ordered to pay a landowner over KSh 464,000 for cutting his trees without notice, proving utilities must get permission before entering private land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant trespassed and is liable for cutting the Plaintiff's trees
Yes - entry without notice or permission and cutting trees without the statutory seven-day notice contravened Sections 46 and 55 of the Energy Act; liability established on the uncontroverted evidence including the Defendant's letter of 22 December 2015
The Plaintiff produced a title deed, photographs, an OB, a demand letter and a letter from the Defendant dated 22 December 2015 accepting liability and promising compensation. The Defendant filed a defence but called no evidence, leaving the Plaintiff's account unchallenged. The court found entry without notice and cutting without the s.55 notice amounted to trespass and breach of the Energy Act.
Whether special damages of Ksh 214,179/= were proved
Yes - specially pleaded and proved by the valuation report valuing the trees at Ksh 203,980/= plus Ksh 10,199/= assessment fees
The court considered the valuation report of 13 September 2016 (Pf exh 8) showing the value of damaged trees as Ksh 203,980/= and the receipt (Pf exh 9) for Ksh 10,199/= professional fees, concluding the special damages were both specifically pleaded and proved to the required standard.
Quantum of general damages for trespass
General damages for trespass assessed at Ksh 250,000/=, taking a broad view of the value of trees beyond their commercial worth
Trespass being actionable per se, damages were discretionary. The court had regard to the environmental value of trees beyond the commercial view, but noted absence of evidence on planting dates and harvest periods, and so declined the Plaintiff's speculative projection of Ksh 990,000/= based on future sale value per tree.
Effect of a defendant failing to adduce evidence
The plaintiff's evidence stands unchallenged and uncontroverted; the defence assertions are unsubstantiated
Relying on Motex Knitwear Ltd v Gopitex Knitwear Mills Ltd (citing Autar Singh Bahra v Raju Govindji), the court held that a defendant who denies liability in a defence but calls no witness leaves the plaintiff's case unchallenged, and its own assertions remain unsubstantiated and must fail.
Legal principles established
#- A person shall not enter another's land to lay electric supply lines except with the prior permission of the owner, given by notice with a statement of particulars of entry
- Trespass to land is actionable per se and no proof of damage is necessary
- Where a defendant adduces no evidence despite filing a defence, the plaintiff's evidence remains unchallenged and uncontroverted
Court orders
#- 1.Judgment entered against the Defendant for special damages of Ksh 214,179/=
- 2.General damages for trespass assessed at Ksh 250,000/=
- 3.Costs of the suit to the Plaintiff
- 4.Interest on special and general damages at court rates from the date of filing suit until payment in full
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim of trespass to land (Article 162(2)(b) Constitution, ELC Act) - as reflected by the court's determination of the trespass claim; no provision expressly invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Bii v Kenya Power and Lighting Company Limited [2021] KEELC 4193 (KLR)", Case Analysis (2021). ELC No. 114 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4193/eng@2021-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.