Rosewa Agencies Limited v Kenya Power & Lighting Company Limited
The bottom line
#Kenya Power was ordered to pay a landowner over KSh 46 million for running high voltage power lines across private land without consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant's entry and erection of high voltage power lines on the suit property constituted trespass
Yes - the defendant failed to prove the owner's consent or the existence of a wayleave or pre-existing 1963 power line, so its entry was an illegal entry amounting to continuous trespass
Although section 28 of the Land Registration Act makes registered land subject to overriding interests such as electric supply lines erected under statutory powers, and sections 171 and 173 of the Energy Act permit entry for energy infrastructure, the defendant bore the burden of proving consent or compliance. DW1 conceded there was no wayleave noted on the title, and no evidence supported the claim of a 1963 power line. The lines have remained since 2014, making the trespass continuous.
Whether the plaintiff was entitled to compensatory damages and in what quantum
Compensatory damages of Kesh 45,120,000 awarded, being the market value of 2.82 acres (1.14 hectares) per the plaintiff's valuation report, less the 30% injurious affection and 15% component previously under the repealed Acquisition Act Cap 295
The court adopted the plaintiff's valuation report which pegged the market value at Kesh 45,120,000, and deducted the 30% injurious affection and 15% line from the repealed Act, effectively awarding loss of use of the whole 2.82 acres. The defendant's own expert conceded the defendant had erected a 66 KV line on the property and recommended 50% compensation, corroborating that compensation was due.
Whether the plaintiff was entitled to mesne profits
No - the claim was not particularised or proved; no receipts or evidence of rental income were produced
The plaintiff only asserted a rental of Kesh 100,000 per acre without explaining its source. Relying on Peter Mwangi Mbuthia v Samow Edin Osman, the court held a party must place material before the court demonstrating how the mesne profits claim was computed. Absent such evidence, the prayer was declined despite trespass being established.
Whether a permanent injunction should issue restraining the defendant
No - having compensated the plaintiff for the portion utilised, the court declined to restrain the defendant from using that portion, suggesting instead a structured wayleave agreement
The court reasoned that compensation for the loss of use of the encroached portion satisfied the plaintiff's claim; removing the lines would be inconsistent with the compensatory award. It opined that a structured wayleave agreement between the parties would be pertinent going forward.
Legal principles established
#- Construction of a wayleave on private land requires the prior consent of the owner; failure to obtain consent renders the entry a trespass
- Rights of a registered proprietor are subject to overriding interests including electric supply lines erected in pursuance of powers conferred by written law, which need not be noted on the register
- Trespass to land is actionable per se and no proof of damage is necessary for the award of general damages
- A claimant seeking mesne profits must place material before the court demonstrating how the amount claimed was arrived at
Court orders
#- 1.A declaration that the defendant has trespassed on the suit property without the plaintiff's consent and caused permanent and irreparable damages thereto
- 2.General damages for the continuous trespass awarded at Kesh 1 million
- 3.Compensatory damages awarded at Kesh 45,120,000
- 4.Costs of the suit awarded to the plaintiff
- 5.Interest on the general damages, compensatory damages and costs to accrue 60 days after the date of judgment until payment in full
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (trespass on LR No 18697/4)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiruki v Kenya Power & Lighting Company Plc (Environment and Land Petition E007 of 2025) [2026] KEELC 2533 (KLR)[2026] KEELC 2533 (KLR)4 May 2026
Cite this brief
#Cite this brief
Caselaw, "Rosewa Agencies Limited v Kenya Power & Lighting Company Limited", Case Analysis (2023). Environment and Land Case Civil Suit 1048 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16289/eng@2023-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.