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ELCDismissed· [2022] KEELC 3754 (KLR)

Roki v Kenya Power & Lighting Company Ltd (Environment & Land Case 25 of 2020) [2022] KEELC 3754 (KLR)

Environment and Land Court
30 June 2022
4,855 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered proprietor of L.R No. Dagoreti/Riruta/766 measuring approximately 3.8 acres, sued the Kenya Power & Lighting Company Limited seeking a declaration that the Defendant was obliged to seek his consent and pay compensation for laying electric supply lines on his land, general damages, a permanent injunction and costs. He testified that on January 15, 2013 he found the Defendant's workmen erecting concrete electric poles on his land without consent, and that dragging the poles destroyed his Napier grass. The Defendant, through its wayleaves officer, maintained that the 66KV line from Kabete to Lavington Sub-station was erected along the road reserve approximately two metres from the road barrier, that the project was aborted after NEMA revoked the Environmental Impact Assessment following complaints by Lavington residents, and that there was no encroachment or trespass. The court framed three issues: proof of trespass, the probative value of photographs produced without an electronic certificate, and the reliefs to be granted. Holding that ownership was admitted but the location of the poles contested, the court found that in the absence of a surveyor's report the Plaintiff had failed to discharge the burden of proof under sections 107, 108 and 109 of the Evidence Act. The photographs were held to carry little or no probative value absent a section 106B certificate. Trespass being actionable per se, the court observed it would have awarded nominal damages of Kshs. 200,000/- had trespass been proved, but the suit was dismissed with no orders as to costs on June 30, 2022.

Key legal issues

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01

Whether trespass onto the suit property was proved

Holding

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.

Reasoning

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.

p. 8
02

Probative value of photographs produced without an electronic certificate

Holding

The photographs had little or no probative value for want of a certificate under section 106B of the Evidence Act.

Reasoning

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).

p. 9
03

What reliefs ought to be granted

Holding

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.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit be and is hereby Dismissed, albeit with no orders as to Costs.

Authorities

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Legislation

  • Evidence Act, Chapter 80 Laws of KenyaSections 107, 108, 109
  • Evidence Act, Chapter 80 Laws of KenyaSections 106A, 106B
  • Evidence Act, Chapter 80 Laws of KenyaSections 120
  • Land Registration Act, 2012Sections 24, 25, 28
  • Trespass Act Chapter 294 Laws of KenyaSection 3

Cases cited (9)

  • Joseph Kipchirchir Koech v Philip Cheruiyot Sang
    (2018) eKLR
  • Ochako Obinju v Zachary Oyoti Nyamongo
    (2018) eKLR
  • Simeon Nyachae & Another v County Government of Mombasa
    (2020) eKLR
  • Kenya Power & Lighting Company Ltd v Fleetwood Enterprises Ltd
    (2017) eKLR
  • Rhoda S. Kiilu v Giangxi Water & Hydro Power Construction K Ltd
    (2019) eKLR
  • Agnes Nyambura Munga (suing as the Executrix of the Estate of the late William Earl Nelson) v Lita Violet Shepard (sued in her capacity as the Executrix of the Estate of the Late Bryan Walter Shepard)
    [2018] eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
  • Samwel Kazungu Kambi vs Nelly Ilongo & 2 Others
    [2017] eKLR
  • Miller vs Minister of Pensions
    (1947)
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

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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, "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.