Roki v Kenya Power & Lighting Company Ltd (Environment & Land Case 25 of 2020) [2022] KEELC 3754 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether trespass onto the suit property was proved
Not proved. Ownership was common ground, but the Plaintiff failed to prove that the poles were erected within his parcel rather than the road reserve, absent a surveyor's report.
The court accepted the Plaintiff as registered proprietor entitled to protection under sections 24 and 25 of the Land Registration Act. However, the location of the poles was seriously contested, the Defendant maintaining they stood on the road reserve two metres from the barrier. The Plaintiff produced no surveyor's report to establish the boundary and extent of any encroachment. Applying sections 107, 108 and 109 of the Evidence Act, the court held the Plaintiff failed to discharge the burden on a balance of probabilities, and could not rely on the Defendant's failure to produce a wayleaves report.
Probative value of photographs produced without an electronic certificate
The photographs had little or no probative value for want of a certificate under section 106B of the Evidence Act.
The court distinguished admissibility from probative value. Although the photographs were admitted, no electronic certificate signed by the author or originator was tendered, so the court could not attribute meaning to the images or conclude that damage to the Napier grass occurred. The court adopted the reasoning in Samwel Kazungu Kambi v Nelly Ilongo & 2 Others on the certificate requirement under section 106B(4).
What reliefs ought to be granted
None; the suit was dismissed. The court observed that had trespass been proved, it would have awarded only nominal damages of Kshs. 200,000/- given the absence of material damage.
Trespass is actionable per se under the Trespass Act, but the Plaintiff failed to prove the cause of action. The court noted that even a proven trespass would have attracted only nominal damages because no material damage to the land was demonstrated and no agricultural assessment of crop damage was tendered. The claim was therefore dismissed with no orders as to costs.
Legal principles established
#- A plaintiff bears the evidential burden of proving its case to the standard of a balance of probabilities, and cannot rely on defects in the defence where it has not discharged that burden.
- Where the alleged encroachment is contested, a surveyor's report is necessary to establish whether the impugned structures fall within the suit property or a road reserve.
- Photographs, being electronically produced evidence, carry little or no probative value without a certificate under section 106B of the Evidence Act confirming their authenticity.
Court orders
#- 1.The Plaintiff's suit be and is hereby Dismissed, albeit with no orders as to Costs.
- Jurisdiction invoked
- Original civil jurisdiction over a land dispute (trespass claim) before the Environment and Land Court; no specific provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Roki v Kenya Power & Lighting Company Ltd (Environment & Land Case 25 of 2020) [2022] KEELC 3754 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3754/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.