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ELCPartially AllowedEnvironment and Land Case 151 of 2013· [2026] KEELC 5832 (KLR)

Mburu v Kenya Power & Lighting Company Limited

Environment and Land Court
24 September 2026
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya Power must remove a power line built on private land without consent and pay Kshs.300,000 in damages plus costs.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of parcel Kwale/Ukunda/50, sued Kenya Power & Lighting Company seeking an injunction, a declaration of breach of his constitutional right to property under Article 40, removal of an allegedly illegally installed power line, a declaration of trespass, damages and costs. The defendant denied the claim, asserting the lines were on adjacent parcel 47 or, alternatively, that any encroachment was an honest mistake remediable by way-leave compensation. After the first ELC judgment of 21.09.2018 in the plaintiff's favour was set aside on appeal, the Court of Appeal, by judgment dated 06.05.2022, remitted the proceedings under Rule 31 of the Court of Appeal Rules, directing that the District Land Registrar, Kwale ascertain the boundaries and file a report, upon which the ELC would determine trespass. The registrar's report found the defendant's power lines fell squarely within parcel 50. Adopting the Court of Appeal's holding that boundary determination is the statutory function of the land registrar under Section 18 of the Land Registration Act, the court found the line was laid without the plaintiff's consent and constituted a continuing trespass, rejecting the defendant's limitation defence under section 4(2) of the Limitation of Actions Act. Judgment was entered for the plaintiff: a declaration of contravention of Article 40, an order compelling removal and re-routing of the power line, general damages of Kshs.300,000 (reduced from the Kshs.700,000 sought) and costs of the suit. A restraining injunction was refused as it would serve no useful purpose.

Key legal issues

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01

Location of the defendant's power line relative to parcel 50

Holding

The defendant's power lines fall squarely within the plaintiff's parcel 50, based on the Land Registrar's boundary determination

Reasoning

Pursuant to the Court of Appeal's remittal directions, the court required the Land Registrar Kwale to ascertain the boundaries of parcel 50 and file a report. The registrar found the power lines fell squarely within parcel 50. The court held this determination put to rest the uncertainty as to the boundaries of parcels 50 and 47 and the location of the power line.

p. 3
02

Trespass and limitation of actions

Holding

The installation without consent constitutes a continuing trespass; the claim is not statute-barred under section 4(2) of the Limitation of Actions Act

Reasoning

The court found the power line was laid without the plaintiff's consent or authority and remains on parcel 50, making it a continuing trespass for each day it remains. Because the trespass continues daily, the defendant's submission that the claim was statute-barred under section 4(2) of the Limitation of Actions Act was rejected.

p. 3
03

Entitlement to reliefs

Holding

The plaintiff proved his claim on a balance of probabilities and was entitled to a declaration under Article 40, an order to remove and re-route the line, damages and costs, but not an injunction

Reasoning

On the registrar's findings, the court held the plaintiff proved his claim on a balance of probabilities. Judgment was entered with a declaration of contravention of the right to property under Article 40, an order compelling removal and re-routing of the power line, general damages of Kshs.300,000 and costs. A restraining injunction was refused as it would serve no useful purpose.

Legal principles established

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  • Determination of general boundaries is the statutory function of the land registrar under Section 18 of the Land Registration Act
  • A wrongful power line left standing on another's land constitutes a continuing trespass for each day it remains, defeating a limitation defence

Court orders

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  1. 1.A declaration that the defendant has contravened the plaintiff's right to property under Article 40 of the Constitution in relation to parcel No. Kwale/Ukunda/50
  2. 2.An order compelling the defendant to remove and re-route the power line traversing parcel No. Kwale/Ukunda/50
  3. 3.Award of Kshs.300,000 as general damages for trespass
  4. 4.Award of costs of the suit to the plaintiff
On appeal from
Court of Appeal
Jurisdiction invoked
Jurisdiction exercised on remittal from the Court of Appeal under Rule 31 of the Court of Appeal Rules, following directions to determine trespass after boundary ascertainment under Section 18 of the Land Registration Act

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, "Mburu v Kenya Power & Lighting Company Limited", Case Analysis (2026). Environment and Land Case 151 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5832/eng@2026-09-24

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