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ELCDismissedNot stated in the excerpt (Plaint dated April 7, 2015)· [2023] KEELC 407 (KLR)

Ramji & 2 others v Kenya Power and Lighting Company (Environment and Land Case 109 of 2015) [2023] KEELC 407 (KLR)

Environment and Land Court
1 February 2023
3,037 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Landowners lost a trespass case against Kenya Power because a 1956 wayleave attached to their land and they couldn't prove their claimed damages.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors since June 2010 of L.R No.11895/50 (original number 11895/24/17), sued the defendant power distributor seeking a declaration of trespass, eviction, an injunction against erecting electricity lines over their land, general damages of Ksh.500,000 per day, interest and costs. The Defendant denied trespass, asserting a 1956 wayleave for a power line from the Juja Road Control sub-station to the Athi River sub-station, recorded as MK/1, which bound the Plaintiffs' title acquired in part substitution of Grant IR 95708/1, and contended the Plaintiffs had failed to comply with conditions for rerouting the line. The court framed three issues: trespass, damages and costs. It found the 1956 wayleave uncontroverted on the evidence of the Defendant's Wayleave Officer, supported by a letter and maps. The Plaintiffs' own Certificate of Title referenced special conditions in Grant IR 95708/1, confirming they took subject to pre-existing encumbrances. The court held that a wayleave attaches to the land and binds subsequent owners, so no fresh consent was needed. The Ringera decision relied on by the Plaintiffs was distinguished because there new lines were built over developed land. The Plaintiffs also failed to prove damages, having produced no building plans or expert evidence for the projected daily income. The court found the Plaintiffs had not discharged the burden under section 107 of the Evidence Act and dismissed the suit with costs on 1 February 2023 in Machakos.

Key legal issues

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01

Whether the Defendant trespassed on the Plaintiffs' land

Holding

No trespass was proved; the power line was constructed pursuant to a 1956 wayleave which was an encumbrance on the land and bound the Plaintiffs' title acquired in 2010 in part substitution of Grant IR 95708/1

Reasoning

The court found the wayleave dated 30th November 1956 recorded as MK/1, evidenced by a letter and maps. The Plaintiffs' own Certificate of Title referenced special conditions in Grant IR 95708/1 and part substitution, showing they took subject to pre-existing encumbrances. They bought in 2010 with an existing power line, immediately sought rerouting, and did not comply with rerouting conditions. The Ringera decision was distinguished on its facts.

p. 5
02

What damages, if any, are payable

Holding

No damages were awarded because the Plaintiffs failed to prove the projected loss of Ksh.500,000 per day

Reasoning

PW1 admitted the godowns were not yet constructed and offered only a projection of revenue. No approved building plans or expert valuation of the alleged projected loss of income were produced. Damages must be proved to be awarded.

p. 6
03

Burden of proof on the trespass claim

Holding

The Plaintiffs failed to discharge the burden under section 107 of the Evidence Act to show the defendant constructed fresh power lines on the land

Reasoning

Under section 107 of the Evidence Act the party alleging must prove. PW1 admitted an existing power line at purchase; the defendant's wayleave evidence (1956 letter and maps) was uncontroverted. The court also noted the prior Nairobi ELC 615 of 2011 litigation involving the same power line and parcel.

p. 6

Legal principles established

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  • A wayleave attaching to land constitutes an encumbrance that binds subsequent purchasers; a fresh grant of consent is unnecessary for a pre-existing power line
  • Proof of ownership is prima facie proof of possession and trespass is actionable at the instance of the person in possession
  • Damages must be proved; projected income without building plans or expert evidence is not recoverable

Court orders

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  1. 1.Dismissal of the Plaintiffs' suit with costs

Authorities

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Legislation

  • Trespass ActSection 3
  • Energy Act, 2006Section 46
  • Energy ActSection 171
  • Energy ActSection 173
  • Evidence ActSection 107
  • Registration of Titles Act Cap 281Section 70

Cases cited (8)

  • John Kiragu Kimani v Rural Electrification Authority
    (2018) eKLR
  • Fleetwood Enterprises Limited v Kenya Power & Lighting Limited
    (2014) eKLR
  • Bhogal v Kenya Power and Lighting Co. Ltd
    (2020) eKLR
  • George Joseph Kangethe & Another v Kenya Power & Lighting Company Ltd
    (2020) eKLR
  • Kenya Power & Lighting Company Limited v Eunice Ringera & 2 Others
    Civil Appeal E 247 & E 248 of 2020 (consolidated) (2022) KECA 104 (KLR)
  • Municipal Council of Eldoret v Titus Gatitu Njau
    (2020) eKLR
  • Justin Gatumuta v Kenya Power & Lighting Co. Ltd
    (2018) eKLR
  • The Kenya Power Lighting & Co. Limited v Kings Collection Limited
    Nairobi ELC No.615 of 2011
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land L.R No.11895/50

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ramji & 2 others v Kenya Power and Lighting Company (Environment and Land Case 109 of 2015) [2023] KEELC 407 (KLR)", Case Analysis (2023). Not stated in the excerpt (Plaint dated April 7, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/407/eng@2023-02-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.