Kenya Power & Lighting Company Plc v Gatonye & another (Environment and Land Appeal E106 of 2025) [2026] KEELC 1765 (KLR)
The bottom line
#Kenya Power lost its appeal and must remove power lines erected on private land without the owner's written consent or compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Energy and Petroleum Tribunal exceeded its jurisdiction by determining ownership/boundary of land, a matter reserved to the Environment and Land Court under Article 162(2)(b)
The Tribunal did not determine ownership; it merely applied undisputed evidence of title to determine trespass and wayleave matters within its statutory remit
The 1st Respondent's ownership of LR 209/12398 was never in dispute before the Tribunal; none of the reliefs sought a declaration of ownership and the Tribunal issued none. Section 36 of the Energy Act gives the Tribunal jurisdiction over energy disputes including wayleaves, and Section 26 of the Land Registration Act makes the certificate of title prima facie evidence. Examining survey plans and beacon certificates to establish encroachment is incidental and does not oust jurisdiction.
Whether the Tribunal erred in finding trespass and awarding general damages of Kshs. 1,500,000 for continuing trespass
No error; the evidence (allotment letter, grant of lease, deed plan, beacon certificate, surveyor testimony) established trespass without consent or compensation, and the damages award followed correct principles
PW2 (an Assistant Director of Survey) and PW3 (a licensed surveyor) confirmed the Appellant's infrastructure was on the 1st Respondent's land without consent or compensation. Under Sections 171 and 173 of the Energy Act, entry without written consent and compensation is unlawful. Applying Butt v Khan and United India Insurance, the appellate court will not interfere with a discretionary award absent misdirection; the Tribunal relied on comparable precedent (Kshs. 2,000,000 awarded) and the award was legally sound.
The appropriate reliefs on appeal
Appeal dismissed; Tribunal judgment affirmed with costs to the 1st Respondent
An appellate court's duty where the lower tribunal did not err is to affirm the decision to uphold the rule of law, protect vested property rights and ensure finality. Allowing the appeal would countenance continuing trespass in violation of Article 40 property rights. Costs follow the event under Order 22 Rule 1 and Section 27 of the Civil Procedure Act.
Legal principles established
#- Jurisdiction flows from the Constitution or legislation and a court without jurisdiction must down its tools
- The Energy and Petroleum Tribunal is the specialized forum for energy-sector disputes including wayleave and compensation disputes, and examining title/survey documents incidentally does not exceed its jurisdiction
- Sections 170, 171 and 173 of the Energy Act, 2019 require prior written consent of the landowner and a compensation agreement before entry for energy infrastructure; failure renders the entry unlawful
- An appellate court will not disturb an award of damages unless inordinately high or low or arrived at on wrong principles
- Continuous trespass gives rise to a fresh cause of action each day the trespass continues
Court orders
#- 1.The Appeal be and is hereby dismissed
- 2.The judgment of the Energy and Petroleum Tribunal delivered on 15th May 2025 in respect to EPA/E028/2024 be and is hereby affirmed
- 3.The costs of this appeal are awarded to the 1st Respondent assessed at Kshs. 140,000/= all inclusive
- On appeal from
- Energy & Petroleum Tribunal
- EPA/E028/2024
- Jurisdiction invoked
- Appellate jurisdiction under the Energy Act, 2019 (Tribunal appeals), with the Court exercising inherent jurisdiction under Section 3A of the Civil Procedure Act and guided by Article 159(2)(b) and (d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Plc v Gatonye & another (Environment and Land Appeal E106 of 2025) [2026] KEELC 1765 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1765/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.