Waitiki v Kenya Power & Lighting Co. Limited
The bottom line
#Kenya Power must pay a Mombasa landowner Kshs 21 million for running power lines across his land without his consent, though he claimed Kshs 600 million.
What this practically means
#Executive summary
#Key legal issues
#Whether KPLC trespassed on the suit land
Yes - KPLC entered and laid power lines and transformers without the owner's consent, based only on consent from occupants who were trespassers without title
The court traced the statutory regime (Electric Power Act s 46; Energy Act ss 171 and 173) requiring prior consent of the land owner with notice and particulars of entry. The Plaintiff was registered owner from 1975 to 2016; eviction by invaders in 1999 did not displace his legal ownership. The Defendant admitted it never sought the Plaintiff's consent, obtaining it instead from occupants who then held no indefeasible title. Their entry and continued supply of power to over 11,000 households until the 2016 sale therefore constituted continuing trespass.
Whether the Plaintiff was in possession so as to sue in trespass
Legal ownership sufficed; the Plaintiff, though physically ousted since 1999, retained title and capacity to sue until he sold the land in 2016
Relying on Clerk & Lindsell and Lutaaya, the court noted proof of ownership is prima facie proof of possession, and that only a person in actual or constructive possession may sue. It reconciled this with the ouster by holding that forceful invasion never dispossessed the Plaintiff of the seat of legal ownership; the occupants were mere licensees without indefeasible title, so the Plaintiff's title carried the right to sue for the trespass committed against his ownership.
Whether the sale of the land to the Government of Kenya for Kshs 1.25 billion extinguished the trespass claim
Yes, in effect - the court held the purchase price covered all factors including compensation for the KPLC trespass, justifying only modest damages
The court construed the sale agreement, noting Clause 7.2.0 marked all pending cases against the Government as settled and that the KPLC exclusion clause was not expressly inserted. Applying Black's Law Dictionary's definition of land, it held the purchase included everything affixed, including the electricity infrastructure, and that the Attorney General represented KPLC's interests as a State Corporation. Absent certified negotiation records, the court concluded the payment covered full and fair compensation for the trespass.
Quantum of damages
Exemplary/general damages of Kshs 20,000,000 and nominal damages of Kshs 1,000,000 awarded, far below the Kshs 600,000,000 sought
The court accepted trespass is actionable per se but found no valuation report or empirical evidence of loss. It noted KPLC was not party to the initial 1999 invasion and destruction, was liable only for trespass, and that the Government's purchase price covered the land and improvements. Exemplary damages were justified on the basis of oppressive, arbitrary and unconstitutional trespass benefiting over 11,000 households, with nominal damages also awarded.
Legal principles established
#- A supplier of electricity may not enter private land to lay supply lines without the prior consent, permission and approval of the registered owner, accompanied by notice with particulars of entry; entry without such consent is trespass
- Being driven off land by invaders does not dispossess the registered owner of legal ownership; his consent remains required for entry onto the land
- Trespass to land is actionable per se; once trespass is proved no proof of specific damage is necessary
- Parties are bound by their pleadings; unpleaded causes of action (breach of statutory duty) cannot be sustained
Court orders
#- 1.Judgment entered against the Defendant and all the individuals on the suit land for acts of trespass as prayed, with costs
- 2.General and exemplary/punitive damages of Kenya Shillings Twenty Million (Kshs 20,000,000/=) awarded for the loss, oppressive, arbitrary and unconstitutional action of trespass by the Defendant
- 3.Nominal damages of Kenya Shillings One Million (Kshs 1,000,000/=) awarded for the breach of trespass
- 4.Costs of the suit plus interest on the damages at the court rate of 14% per annum from the date of judgment until payment in full, borne by the Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning land); trespass claim tried in the first instance
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hassan Mohamed Mohamud v Tamari Residence Limited & 8 others[2026] KEELC 6112 (KLR)1 Oct 2026
- Kenya Power & Lighting Company Plc v Gatonye & another (Environment and Land Appeal E106 of 2025) [2026] KEELC 1765 (KLR)[2026] KEELC 1765 (KLR)25 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Waitiki v Kenya Power & Lighting Co. Limited", Case Analysis (2022). Environment & Land Case 87 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13795/eng@2022-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.