Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment & Land Case 662 of 2012· [2023] KEELC 717 (KLR)

Karani v Kenya Power (Environment & Land Case 662 of 2012) [2023] KEELC 717 (KLR)

Environment and Land Court
13 February 2023
4,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff, registered proprietor of Plot No. 103 of 6485/182 Embakasi Utawala Estate (renumbered Nairobi/Nairobi Block 186 (Nawell) 103), sued Kenya Power and Lighting Company Limited for trespass, alleging that high voltage power cables dangerously overhung his partially developed commercial building from 4th November 2011 until their relocation on 19th May 2017, preventing him from developing and letting half of his second floor. He sought a declaration of trespass, mesne profits of Ksh. 1,340,000, general damages for trespass and for psychological suffering, special damages of Ksh. 14,000, an eviction/relocation order and costs. The defendant denied trespass, asserting the poles and lines were on the road reserve, that any encroachment was 0.1 metres and promptly and permanently removed, rendering the suit moot, and that the 2017 relocation was mere maintenance. The court found the plaintiff's uncontroverted surveyor's report and DW1's admissions proved trespass; the defendant neither obtained the plaintiff's consent for the wayleave nor prosecuted him under section 65 of the Energy Act, indicating the cables were laid over an existing construction. The court entered judgment for the plaintiff: a declaration of trespass, general damages of Kshs. 3,000,000, special damages of Kshs. 14,000, and costs with interest on the damages. Mesne profits were declined, only one of mesne profits and general damages being grantable, and no eviction order was made since the lines had already been moved. Judgment delivered by Mogeni J in Nairobi.

Key legal issues

#
01

Whether the defendant trespassed on the plaintiff's land with its power lines

Holding

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

Reasoning

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.

p. 6
02

Quantum of general damages for trespass

Holding

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

Reasoning

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.

p. 8
03

Whether mesne profits were payable

Holding

The claim for mesne profits of Kshs. 1,340,000 was declined because general damages for trespass had already been granted

Reasoning

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.

p. 8
04

Whether special damages of Kshs. 14,000 were payable

Holding

Special damages were awarded as the surveyor's fee of Kshs. 14,000 was specifically pleaded and proved by acknowledgment of payment

Reasoning

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.

p. 7
05

Whether the suit was rendered moot by the relocation of the power lines

Holding

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

Reasoning

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.

p. 7

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. 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. 2.General damages for trespass of Kshs. 3,000,000
  3. 3.Special damages of Kshs. 14,000
  4. 4.Costs of the suit and interest on the general and special damages until payment in full from the date of judgment

Authorities

#

Legislation

  • Energy Actsection 65
  • Energy Actsections 46 and 47
  • Energy Act Cap 1 of 201? (as printed)sections 171 and 173
  • Trespass Actsection 3
  • Land Registration Actsections 24 and 25

Cases cited (16)

  • Phillip Ayaya Aluchio v Chrispine Ngayo
    [2014] eKLR
  • Nakuru Industries Limited v SS Mehta and Sons
    [2016] eKLR
  • Park Towers Limited v John Mithamo and 7 others
    [2014] eKLR
  • Fleetwood Enterprises Ltd v Kenya Power and Lighting Co. Ltd
    [2015] eKLR
  • Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited
    [2017] eKLR
  • Telkom Kenya Limited v County Government of Muranga
    [2019] eKLR
  • Cecilia Mwango Mwenda and 6 others v Isaac Kimatu Ikunga
    [2019] eKLR
  • Fredrick Korir v Soin Women Group
    [2018] eKLR
  • Harrow Investment Limited v Harbajan Singh Sembi
    [2021] eKLR
  • Peter Mwangi Mbuthia and Another v Samow Edin Osman
    [2014] eKLR
  • Karanja Mbugua and Another v Marybin Holding Co. Ltd
    [2014] eKLR
  • Caltex Oil (Kenya) Limited v Rono Limited
    [2016] eKLR
  • Peter Muriuki v Equity Bank (K) Ltd
    [2018] eKLR
  • Eliud Njoroge Gachiri v Stephen Kamau Nganga
    ELC NO. 121 of 2017
  • John Kiragu Kimani v Rural Electrification Authority
    (2018) eKLR
  • Maina Kabuchwa v Gachuma Gacheru
    (2018) eKLR
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.