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ELCPartially AllowedNot stated in judgment· [2024] KEELC 3462 (KLR)

Cape Suppliers Limited v Kenya Power & Lighting Company PLC (Environment & Land Case E307 of 2021) [2024] KEELC 3462 (KLR)

Environment and Land Court
30 April 2024
5,178 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya Power must pay a landowner KES 50 million for running power lines across private land without permission, and negotiate a wayleave agreement within 90 days.

What this practically means

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Executive summary

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Cape Supplies Limited sued Kenya Power & Lighting Company Limited seeking declarations and damages for trespass, alleging that the defendant unlawfully erected and maintained 66KV high voltage power lines across its parcel LR No. 36/IV/14 (20A) without consent, causing permanent damage and loss of development opportunities. The defendant denied trespass, contending that government-sanctioned wayleaves existed for public power infrastructure, challenged the court's jurisdiction, and raised fraud, res judicata and limitation. The plaintiff called its director and a licensed surveyor; the defendant called a wayleave officer and a surveyor. The Deputy Registrar's uncontroverted site visit report confirmed the power lines traverse the plaintiff's property. The court framed four issues: ownership, trespass, compensation and costs. It found the plaintiff to be the lawful proprietor on the strength of the title and indenture, the defendant having produced no evidence that the land was government land. Applying sections 46, 47 and 52 of the Energy Act and Part X of the Land Act, 2012, the court held that laying power lines on private land requires the owner's permission, notice and compensation, none of which was obtained, rendering the defendant's presence a continuing trespass actionable per se. The court awarded general damages of Kshs. 50,000,000 with interest, declined to order removal of the lines as impractical and against public interest, and instead directed the defendant to negotiate a proper wayleave agreement under Section 148 of the Land Act within 90 days. Costs were awarded to the plaintiff.

Key legal issues

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01

Ownership of the suit land

Holding

The plaintiff is the lawful registered proprietor of LR No. 36/IV/14 (20A)

Reasoning

The plaintiff produced a copy of the title and an Indenture of Conveyance showing current and previous ownership. The defendant alleged the land was government land but produced no evidence. PW2 testified no reservations or easements appeared on the Survey of Kenya map. Ownership was therefore established.

p. 7
02

Trespass by erection of 66KV power lines

Holding

The defendant trespassed and the trespass is continuing, as no consent of the plaintiff was obtained as required by the Energy Act

Reasoning

The Energy Act (ss. 46, 47 and 52) requires prior permission of the landowner, notice with particulars of entry, and compensation. The defendant never sought the plaintiff's permission, did not give such notice, and did not compensate the plaintiff. Its presence and power lines on the land are therefore a continuing trespass.

p. 8
03

Quantum of compensation

Holding

General damages of Kshs. 50,000,000 awarded; removal of lines impractical; parties directed to negotiate a wayleave under Section 148 of the Land Act

Reasoning

Trespass being actionable per se, damages required assessment on the facts. The plaintiff's valuation and loss of rental income claims were unrebutted, but removal of the line would incapacitate power supply and pose public interest concerns. The court awarded general damages and directed negotiation of a proper wayleave agreement within 90 days.

p. 9

Legal principles established

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  • Trespass to land is actionable per se; no proof of specific damage is required.
  • Permission of the landowner is required before entering land to lay electric supply lines, with notice and statement of particulars of entry.
  • Wayleaves are governed by Part X of the Land Act, 2012, with compensation provided under Section 148.

Court orders

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  1. 1.General damages in the sum of Kshs. 50,000,000/- for trespass with interest at court rates from the date of judgment until payment in full
  2. 2.The defendant directed to negotiate a proper wayleave agreement/right of way with the plaintiff as per Section 148 of the Land Act 2012 within 90 days from the date of judgment
  3. 3.Either party has liberty to apply
  4. 4.Costs of the suit to be borne by the defendant

Authorities

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Legislation

  • Trespass ActSection 3
  • Energy Act, Cap 314 Laws of KenyaSections 46, 47, 52
  • Land Act, 2012Sections 143-149, particularly Section 138 and Section 148
  • Public Authorities Limitation ActSection 3(1)
  • Constitution of KenyaArticle 40 (Right to Property)
  • Wayleaves Act (since repealed)

Cases cited (14)

  • Eliud Njoroge Gachiri vs Stephen Kamau Ng’ang’a
    [2018] eKLR
  • Isaac Ben Mulwa vs Jonathan Mutunga Mweke
    Civil Appeal No. 60 of 2015
  • Fleetwood Enterprises Ltd vs Kenya Power & Lighting Co. Ltd
    [2015] eKLR
  • Kenya Power and Lighting vs Fleetwood Enterprises Ltd
    [2017] eKLR
  • SJ vs Francesco Di Nello & Another
    [2015] eKLR
  • Park Towers Ltd vs John Mithamo Njika & 7 Others
    (2014) eKLR
  • Philip Ayaya Aluchio Ngayo
  • David Nanine vs Martin Bundi
    [1997] eKLR
  • Kenya Sugar Board vs Ndungu Gathini
    (2013) eKLR
  • Party of Independent Candidate of Kenya vs Mutula Kilonzo & 2 Others
  • Mbuthia Macharia vs Anna Mutua & Another
    [2017] eKLR
  • Philip Ayayo Aluchio vs Crispinus Nguyo
    [2014] eKLR
  • Cecilia Karuru Ngeny vs Barclays Bank of Kenya & Another
    [2016] eKLR
  • Capital Fish Kenya Ltd vs Kenya Power and Light Co. Ltd
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land (jurisdiction confirmed in prior Ruling dated 15/03/2022)

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, "Cape Suppliers Limited v Kenya Power & Lighting Company PLC (Environment & Land Case E307 of 2021) [2024] KEELC 3462 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3462/eng@2024-04-30

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