Mwandogho v Kenya Elecrticity Transmission Company Limited (Environment & Land Case 184 of 2018) [2022] KEELC 3923 (KLR)

The court applied Section 26(1) of the Land Registration Act providing that a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is party or where the title was acquired illegally, unprocedurally or through a corrupt scheme. No such grounds were raised against the Plaintiff, and Article 40 protects private property from arbitrary State acquisition save for compulsory acquisition with fair compensation.

Section 171 of the Energy Act requires prior consent of the landowner before laying electric supply lines, with public advertisement and radio announcement as alternatives where the owner cannot be traced. Section 46(1) of the Electric Power Act requires service of notice on the owner. The court found the Defendant never served the Letter of Offer (DW-1 admitted no proof of receipt), never procured consent, never executed an easement grant, and took none of the statutory mitigation measures such as newspaper advertisement or radio announcement when it could not trace the Plaintiff. Its compensation policy could not override statute.

The court distinguished prohibitory from mandatory injunctions, noting that a mandatory injunction requires a higher threshold and special circumstances, per Kenya Breweries v Washington Okeyo and Malier Unissa Karim v Edward Oluoch Odumbe. The Plaintiff proved registered ownership and that the Defendant irregularly and illegally entered and constructed without consent. A trespasser should give way and it is no answer that the trespass is compensable in damages. Special circumstances being established, both injunctions issued.

The Plaintiff's valuer (the same firm used by the Defendant, the only variation being timing) valued the affected area at Kshs. 600,000 per acre in 2017 and assessed loss at Kshs. 400,000, testifying the land could not be reinstated. The court accepted this as the basis for general damages, relying on Kinake Co-operative Society v Green Hotel and KPLC v Fleetwood Enterprises on assessment where damages are at large. The court then granted the alternative compensation prayer of Kshs. 600,000 for the way leave area.

The court reaffirmed the trite position that special damages must not only be specifically pleaded but also strictly proved, relying on Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited where no evidence led on the loss rendered the figure an abstract claim. Applying the same principle, the court declined to award the Kshs. 50,000 claimed as special damages from the valuation reports.