Kigunda v Kenya Power & Lighting Company (Environment and Land Petition E024 of 2021) [2025] KEELC 7919 (KLR)
The bottom line
#A Kenyan court ordered Kenya Power to pay Kshs 3.5 million and remove power lines it installed on private land without written consent or compensation.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a petition involving wayleaves and electricity infrastructure
The Court has jurisdiction; the petition raises constitutional and property-rights questions within Article 162(2)(b) and Section 13 of the ELC Act, and the jurisdiction issue had been conclusively determined twice.
The preliminary objection was dismissed in a ruling of 28th February 2022, and a review application seeking to reopen it was dismissed on 20th December 2023 for failure to meet Order 45 Rule 1. The Respondent did not appeal either ruling and is bound by the doctrine of finality. The grievance is not a mere regulatory complaint but a claim of constitutional violations of Articles 40 and 47.
Lawfulness of the erection and upgrade of power lines without fresh written consent or compensation
Unlawful; the initial consent for a domestic line did not authorise the upgrade and broader distribution use, which constituted continuing trespass and a violation of Article 40.
Sections 170, 171 and 173 of the Energy Act, 2019 mandate prior written consent with an agreement on compensation. The Respondent produced no written wayleave or certificate; an acknowledgment of a 1984 domestic connection is not a perpetual easement. The Respondent's own manual requires fresh consents upon voltage upgrade, and the upgrade materially altered the burden on the land.
Whether the disconnection of electricity supply violated constitutional rights
Yes - the disconnection was without notice, hearing or lawful justification, violating Articles 27, 28, 46 and 47.
Sections 136, 140 and 142 of the Energy Act impose non-discriminatory supply obligations on distributors, read with Articles 46 and 47. The Respondent produced no notice of disconnection, no evidence of outstanding bills, and admitted no written communication explaining the decision. Demanding relocation fees as a precondition for restoration and selectively disconnecting the Petitioner amounted to discrimination under Article 27.
Entitlement to reliefs
Partially allowed: declarations, a mandatory rerouting order within six months, Kshs.3,000,000 compensation, Kshs.500,000 general damages for trespass and costs; general constitutional damages disallowed.
Having proved statutory and constitutional violations, the Petitioner was entitled to declaratory and compensatory remedies, but damages must be compensatory rather than punitive and reflect the proven infringement, following Fleetwood Enterprises Ltd v KPLC.
Legal principles established
#- Entry upon private land to erect energy infrastructure requires prior written consent and an agreement on compensation under the Energy Act, 2019; absence of such consent renders the occupation a continuing trespass.
- The burden of proving that a wayleave was lawfully and procedurally acquired lies with the licensee.
- A material upgrade of a power line on private land necessitates a fresh wayleave consent and compensation even if the original entry was consensual.
- Disconnection of an existing electricity supply is an adverse administrative action requiring prior notice, an opportunity to be heard, and written reasons.
- A party who elects not to appeal an interlocutory ruling is bound by it and cannot reopen the issue.
Court orders
#- 1.A Declaration that the Respondent's erection and continued maintenance of electricity infrastructure over L.R. Nos. 14969/38, 14969/39 and 14969/40 (Kasarani) without the Petitioner's written consent or compensation is unlawful, unconstitutional and constitutes continuing trespass, contrary to Article 40 of the Constitution and Sections 170–173 of the Energy Act, 2019.
- 2.A Declaration that the Respondent's disconnection of electricity supply to the Petitioner's residence on or about 12th May 2019 was unlawful, unreasonable and procedurally unfair, in violation of Articles 27, 46 and 47 of the Constitution.
- 3.A Mandatory Order directing the Respondent to, within six (6) months, remove, realign or reroute the impugned power lines and poles from the Petitioner's land, in consultation with the Petitioner and relevant authorities.
- 4.The Respondent shall pay the Petitioner Kshs.3,000,000/- for compensation for the affected portion of land and loss of use.
- 5.The Respondent shall pay the Petitioner Kshs.500,00/- for general damages for continuing trespass.
- 6.General damages for violation of constitutional rights disallowed as not proved.
- 7.The Petitioner shall have the costs of the Petition.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigunda v Kenya Power & Lighting Company (Environment and Land Petition E024 of 2021) [2025] KEELC 7919 (KLR)", Case Analysis (2025). Petition dated 5th July 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7919/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.