Karani v Kenya Power (Environment & Land Case 662 of 2012) [2023] KEELC 717 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the defendant trespassed on the plaintiff's land with its power lines
The court found trespass established: the defendant laid high voltage cables over the plaintiff's plot without consent, admitted leaning poles and overhanging lines, and relocated the lines only after complaint
The plaintiff's uncontroverted surveyor's report showed a transmission line encroaching 0.1 metres into his plot. DW1 admitted investigations revealed a pole leaning towards the plot and a line hanging over it, and that he removed the lines in 2017. The defendant never proved the plaintiff consented to the wayleave or that the plaintiff built under existing lines; the defendant's failure to prosecute under section 65 of the Energy Act suggested it laid cables over an existing construction.
Quantum of general damages for trespass
General damages of Kshs. 3,000,000 awarded, guided by the location of the property, rental income evidence, and the absence of valuation evidence of the property before and after the trespass
The plaintiff did not adduce valuation evidence of the property's state before and after the trespass, making precise assessment difficult. Drawing analogy with Nakuru Industries Ltd v S S Mehta & Sons, the court exercised its discretion judiciously, considering the Embakasi location and the monthly rental income of Kshs. 5,000 to Kshs. 8,000 from exhibits, and awarded a reasonable global sum.
Whether mesne profits were payable
The claim for mesne profits of Kshs. 1,340,000 was declined because general damages for trespass had already been granted
The court reiterated that mesne profits must be pleaded and proved, and that where a party claims both mesne profits and damages for trespass the court can only grant one. Having awarded general damages for the same trespass covering the period 4/11/2011 to 19/05/2017, the mesne profits claim was refused following Maina Kabuchwa v Gachuma Gacheru.
Whether special damages of Kshs. 14,000 were payable
Special damages were awarded as the surveyor's fee of Kshs. 14,000 was specifically pleaded and proved by acknowledgment of payment
Special damages must be specifically pleaded and proved. The plaintiff pleaded Kshs. 14,000 at paragraph 10(f) of the Amended Plaint and proved it by producing the acknowledgment of receipt of payment to Titus Wambua, the surveyor engaged for the report, satisfying the requirement.
Whether the suit was rendered moot by the relocation of the power lines
The court rejected the mootness argument, holding that the trespass had occurred and the plaintiff was entitled to compensation notwithstanding the subsequent removal of the lines
The defendant argued the suit was overtaken by events since the lines had been moved. The court held that compensation was the fair consequence of the proved trespass, and the plaintiff remained entitled to a declaration and damages even though the encroaching cables had been repositioned.
Legal principles established
#- Trespass is any unjustifiable intrusion by one person upon land in the possession of another, and proof of ownership is prima facie proof of possession entitling the victim to damages
- Construction of a wayleave on private land requires the consent of its owner
- Where trespass is proved, the affected party need not prove specific damage or loss to be awarded damages
- A party cannot be awarded both mesne profits and damages for trespass; only one may be granted
- Special damages must be specifically pleaded and proved
Court orders
#- 1.A declaration that the defendant, by itself, its agents and/or servants, unlawfully trespassed on the plaintiff's Plot No 103 of 6485/182 Embakasi Utawala Estate
- 2.General damages for trespass of Kshs. 3,000,000
- 3.Special damages of Kshs. 14,000
- 4.Costs of the suit and interest on the general and special damages until payment in full from the date of judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim for trespass to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karani v Kenya Power (Environment & Land Case 662 of 2012) [2023] KEELC 717 (KLR)", Case Analysis (2023). Environment & Land Case 662 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/717/eng@2023-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.