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ELCPartially AllowedEnvironment & Land Case E023 of 2021· [2023] KEELC 21498 (KLR)

M'Tuamwari v Kenya Power and Lighting Company

Environment and Land Court
8 November 2023
8,259 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered owner of LR No. Nyambene/Uringu/1/1023, sued Kenya Power for entering his land, erecting electricity posts on two sides occupying approximately 627 square metres without consent, and for felling 77 mature eucalyptus trees on 29.5.2020. He sought a permanent injunction, special damages of Kshs.875,200, a mandatory order to remove the posts, damages for trespass and general damages. The defendant denied the claim, pleaded overriding interests under Section 28 of the Land Registration Act, alleged the plaintiff had encroached on its wayleave, and raised a preliminary objection on jurisdiction and exhaustion. The defendant closed its case without calling any evidence. The court framed six issues and held that the plaintiff proved ownership by an unimpeached title deed; that the defendant failed to prove a duly obtained wayleave, notice or statutory justification for entry and tree felling; and that the special damages of Kshs.875,200 were specifically pleaded and proved. However, the court found the date of entry, the value and status of the land, and the plaintiff's reaction were not pleaded or proved, and rejected general damages and the injunction. The preliminary objection on jurisdiction was rejected because the Land Acquisition Tribunal was not operational when the suit was filed. The suit succeeded only in terms of prayers (ii), (iii) and (iv): the defendant was ordered, within three months, to realign or reroute its power lines along the plaintiff's boundaries at its own cost, with costs of the suit to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved ownership of the suit land

Holding

Ownership proved by production of title deed and official search, unimpeached by the defendant

Reasoning

The plaintiff produced a title deed and official search as exhibits. The defendant did not challenge the exhibits under the exceptions provided by law. In the absence of impeachment, the court found ownership proved and that the land contained no encumbrances or easements in favour of the defendant.

p. 7
02

Whether the defendant proved a lawful wayleave or justification for entry and felling of trees

Holding

No; the defendant called no evidence and failed to prove a duly obtained wayleave, notice, or statutory justification

Reasoning

The defendant closed its case without calling witnesses despite leave to file documents and statements. It did not plead the date the land became subject to a public right of way, produce a wayleave certificate, or prove notice under Sections 46 and 55 of the Energy Act 2006. Its defence therefore had no probative value, and the felling of trees without notice contravened Section 55.

p. 11
03

Whether special damages of Kshs.875,200 for felled trees were proved

Holding

Yes; the claim of Kshs.875,200 was specifically pleaded and proved

Reasoning

The plaintiff pleaded the figure and supported it with the forest department assessment report, OB report, photographs and valuation evidence. The defendant did not challenge the assessment by way of a rival report. The court found the evidence of PW1, PW2, PW3 and PW4 on tree damage credible and reliable.

p. 11
04

Whether general damages for the power line occupation were payable

Holding

No; instead the court ordered rerouting/realignment of the power lines along the plaintiff's boundaries at the defendant's cost

Reasoning

The plaintiff did not plead the date of entry, the value and status of the land before and after entry, or his reaction at entry. The valuation report did not address the position at the time of entry. Mesne profits were not specifically pleaded. Given these gaps, the court opted for the equitable remedy of rerouting rather than an award of general damages.

p. 12
05

Whether the dispute fell within the court's jurisdiction given the Energy and Petroleum Tribunal and Land Acquisition Tribunal

Holding

The court had jurisdiction; the Land Acquisition Tribunal was not operational when the suit was filed

Reasoning

The defendant's preliminary objection premised on exhaustion of statutory remedies was rejected because, at the time of filing, the Land Acquisition Tribunal was not operational, and Section 128 of the Land Act conferred jurisdiction on the Environment and Land Court to determine wayleave disputes.

Legal principles established

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  • A title deed is prima facie evidence of ownership unless impeached
  • Failure to call evidence in support of a defence renders its contents mere statements with no probative value
  • Special damages must be specifically pleaded and proved
  • A mandatory and permanent injunction is granted only in clear cases

Court orders

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  1. 1.The defendant shall, within three months from the date of judgment, re-align or re-route its power lines with the plaintiff's boundaries to his land, taking into consideration the rights of use by the plaintiff
  2. 2.Costs of the rerouting to be met by the defendant
  3. 3.Suit succeeds only in terms of prayers (ii), (iii) and (iv) to the extent of rerouting or realigning the power lines
  4. 4.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSections 24, 25, 28 (1)
  • Land ActSections 120 (2), 128, 133 (6), 143 (2), 148 (1-5), 173 (1)
  • Energy Act 2019Sections 3, 10, 11, 23, 24, 36, 40, 42, 169 (1) (a), 170-180, 224 (2), 173
  • Energy Act 2006Sections 45, 46, 46 (1-3), 47, 55
  • Electric Power ActSections 45, 46 (1-3)
  • Wayleave Act (repealed)Sections 4, 5, 6 (1)
  • Trespass Act (Cap 294)Section 3 (1)
  • Evidence ActSections 107-112
  • Limitation of Actions ActSection 4 (2)
  • Public Authorities ActSection 3 (1)
  • Fair Administrative Action ActSections 9 (2) & (3)
  • Forest ActSection 43
  • Land Value Amendment ActSection 107
  • Climate Change Amendment Actnot specified
  • Constitution of KenyaArticles 40 (3), 159 2 (c), 169 (1) (d) and (2)
  • Civil Procedure RulesOrder 11

Cases cited (29)

  • Gateway Insurance Co. Ltd vs Jamilla Suleiman & another
    (2018) eKLR

    Legal burden of proof rests on the plaintiff

  • Ahmed Mohamed Noor vs Abdi Aziz Osman
    (2019) eKLR

    Proof of trespass on a balance of probability

  • Charles Ogejo Ochieng vs Geoffrey Okumu
    (1995) eKLR

    Ownership/possessory right proved by title deed

  • Kenya Power Lighting Company vs Ringera & others
    (2022) KECA 104 (KLR)

    Erection of power lines is a continuing trespass

  • Alex Waigera Mwaura vs Chania Power Co. Ltd and another
    (2020) eKLR

    Entry without valid permission amounts to trespass

  • Neteah Njoki Kamau & another vs Eliud Mburu Mwaniki
    (2021) eKLR

    Unsupported allegations of locus standi/res judicata

  • Edward Mariga through Stanley Mobija Mariga vs Nathaniel David & another
    (1997) eKLR

    Failure to prove time-bar/wayleave; effect of uncalled evidence

  • Everlyn College of Design Ltd vs Director of Children Department & another
    (2013) eKLR

    Overriding interests under Section 28 (1) Land Registration Act

  • John Eutick vs Nathan Carrington & others
    (1965) EWHC KBJ 98

    Sanctity of property; justification for entry on land

  • John Kiragu Kimani vs Rural Electrification Authority
    (2018) eKLR

    Definition of trespass; trespass for non-compliance with Section 46 Energy Act

  • KPLC vs Fleet Wood Enterprises Ltd
    (2017) eKLR

    Breach of Sections 46 and 47 Energy Act; trespass actionable per se

  • KPLC vs Kipeon Inland Container Export Processing Zone Ltd
    (2018) eKLR

    Registered owner's rights subject to Section 28 overriding interests; wayleave protection

  • Kenya Power Lighting Company vs Joseph P. King'ara
    (2013) eKLR

    Statutory authority to enter land; deemed assent and damages under Wayleave Act

  • Ahmed Sheikh Amin Msellen vs KPLC
    (2020) eKLR

    Liability where defendant takes over power lines built without permission

  • KPLC vs Mburu
    (2022) KECA 512 (KLR) CA 130 of 2019

    Need to determine whether power line lies within the respondent's property

  • Joseph Abraham Kafwa vs KPLC
    (2014) eKLR

    Cutting trees without notice contravenes Section 55; damages for inconvenience

  • Samuel Motari Nyambati vs KPLC
    (2018) eKLR

    Duty to reroute power line to boundary to minimise interference with land use

  • Dobin Mutiso Ndolo vs Ketraco Ltd
    (2020) eKLR

    Disputed wayleave trace; compensation approach

  • Ketraco vs James Kinoti M'Twerandu
    (2018) eKLR

    30% compensation policy for wayleave

  • Ravaspaul Kyalo Mutisya vs National Land Commission
    (2022) eKLR

    Wayleave/easement disputes referred to Land Acquisition Tribunal

  • African Gas & Oil Co. Ltd vs Attorney General & another
    (2016) eKLR

    Compulsory acquisition in public interest without prior compensation

  • Collector vs Heptulla
    (1968) E.A 555

    Principle of substitution in valuation

  • Peter Musimba vs National Land Commission and others
    (2016) eKLR

    Article 40 (3) compensation limited to fair and lawful amount

  • Locabal International Furniture Ltd vs Agro Exports and others
    (1986) 1 ALL ER 901

    Mandatory injunction granted in clear cases

  • Kamau Mucuha vs Ripples Ltd
    (2001) eKLR

    Mandatory injunction principles

  • KPLC vs Sheriff Molana Habib
    (2018) eKLR

    Perpetual injunction granted upon full determination of rights

  • Lucy Wangui Gachara vs Minudi Okemba Lore
    (2015) eKLR

    Mandatory injunction refused where damage trivial or disproportionate

  • Philip Aluchio vs Chrispin Ngayo
    (2014) eKLR

    Damages for trespass measured by diminution in value or restoration costs

  • Park Towers Ltd vs John Mithamo Njika
    (2014) eKLR

    Assessment of general damages depending on circumstances

Jurisdiction invoked
Section 128 of the Land Act (Environment and Land Court jurisdiction over wayleave disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "M'Tuamwari v Kenya Power and Lighting Company", Case Analysis (2023). Environment & Land Case E023 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21498/eng@2023-11-08

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