Mburu v Kenya Power & Lighting Company Limited

3. The defendant led a defence denying the plainti’s claim in its entirely. The defendant pleaded that it had only constructed power lines traversing as adjacent parcel 47. It was pleaded in the alternative that if the said power line traversed parcel 50 then it was due to an honest mistake which could be remedied by compensating the Plainti for the way leave. 4. At the trial hereof, the plainti called 2 witnesses in support of his claim whereas the defendant called 4 witnesses in defence of the action. The material on record shows that there was a site visit by the Judge before whom the evidence of the parties was taken. 5. The material on record further shows that the plainti called the district surveyor for Kwale county who testied on his behalf and supported his case. The defendant called two land surveyors and the owner of parcel 47 in support of its defence. It was the plainti’s case all along that the impugned powerlines passed over his parcel 50 whereas the defendant maintained that the power lines were on parcel 47. 6. The record shows that upon conclusion of the hearing the trial court delivered a judgment dated 21.09.2018 in favour of the plainti. The trial court was satised on the basis of the evidence on record that the defendant’s power lines passed over parcel 50 and not parcel 47. 7. It is evident from the record that the defendant appealed against the said Judgment to the Court Appeal. A perusal of the Judgment of the Court of Appeal dated 06.05.2022 shows that the said appeal was successful with the consequence that the Judgment dated 21.09.2018 was set aside. The Court of Appeal was of the opinion that it was necessary for the land registrar to determine the boundaries of parcel 50 in accordance with Section 18 of the Land Registration Act before it could be safely concluded that the power lines in question were in fact on the plainti’s land. 8. In concluding its Judgment, the Court of Appeal gave the following directions for resolution of the dispute at paragraph 34 for the Judgment: “ We are satised, therefore, that the learned Judge misdirected herself. Rule 31 of the Court of Appeal Rules empowers this Court to remit the proceedings to the lower court with such directions as may be appropriate and to make any necessary incidental or consequential orders. Pursuant thereto, we remit the proceedings back to the ELC and direct that court to order the District Land Register, Kwale to inspect the property within a time period to be determined by the ELC for purpose of establishing whether, as a matter of fact, the appellant’s power lines and power poles are erected within the boundaries of the respondent’s property and for the Land Registrar to le a report with the ELC court, within a period to be prescribed by that court. Based on such report, and any other evidence it may consider relevant, the ELC shall then determine whether the appellant has trespassed into the respondent’s property.” 9. Pursuant to the said directions this court required the land registrar Kwale to ascertain the boundaries of parcel 50 and le the relevant report in court. The record shows that the land registrar duly determined the boundaries and led a report as directed by the court. 10. The court is of the view that the main question for determination herein is whether or not the defendant’s power line passes over parcel 50 and whether the defendant has violated the Plainti’s proprietary rights. It shall also be necessary to determine whether or not the Plainti is entitled to the reliefs sought in the suit. 11. The court has considered the plainti’s evidence in support of his claim. His case was that the defendant’s power lines traversed his parcel 50 hence he was unable to complete construction on his https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5832/eng@2026-09-24 2

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property owing to the overhanging power lines. He called one surveyor in support of his claim. On its part, the Defendant contended that that the power lines were laid on parcel 47 which was adjacent to parcel 50. The Defendant called 4 witness, including 2 surveyors in support of its position. 12. The court accepts the opinion of the Court of Appeal that statutory authority on determination of general boundaries is the land registrar pursuant to Section 18 of the Land Registration Act. At paragraph 32 of the Judgment, the Court of Appeal held as follows: “ In our view, a determination of whether the power line was within the boundaries of Plot No. 50 was necessary before the Judge could conclude, as she did that the power lines were within the respondent’s property. Indeed, in the course of the trial the learned Judge appreciated this by ordering involvement of the District Land Registrar, Kwale but failed to carry through to ensure that the court order in that regard had been complied with. As the Judge correctly stated, under Section 18 of the Land Registration Act, it is the function of the Land Registrar to determine boundaries. Indeed, had the order of the court given on 6th October 2016 directing “the Director of Survey in collaboration with the District Land Registrar Kwale to visit the suit property for purpose of conrming that the electricity pole on plot no. 50 is on the plot or on the boundary of the plot” been heeded, there would have been a basis for reaching a conclusion whether the power lines traversed the respondent’s property or not.” 13. The court has perused the Land Registrar’s report on the issue of determination of the relevant boundaries. The registrar found that the defendant’s power lines fell squarely within the plainti’s parcel 50. The court is of the view that the registrar’s determination puts to rest the uncertainty of the parties as to the extent of the boundaries of both parcels 50 and 47 as well as the location of the power line. 14. The court is satised that the defendant’s impugned power lines fall within the plainti’s parcel 50 and that the same was laid without the consent or authority of the plainti. The court is satised that the same constitutes a continuing trespass in law for each and every day the powerline remains on parcel 50. The court does not agree with the Defendant’s submissions that the Plainti’s claim is statute barred under section 4(2) of the Limitation of Actions Act. 15. The court is satised that the plainti is entitled to the reliefs sought against the Defendant in the circumstances of this case. Although the Plainti asked for an award of Kshs.700,000 as general damages for trespass the court is of the view that an award of Kshs.300,000 would be sucient to compensate the plainti for violation of his proprietary rights. The court is, however, not inclined to grant a restraining injunction since it would not serve any useful purpose in the circumstances. 16. The upshot of the foregoing is that the court nds and holds that the Plainti has proved his claim against the defendant on a balance of probabilities. As a consequence, Judgment is hereby entered for the plainti against the defendant in the following terms: a. A declaration is hereby made that the defendant has contravened the plainti’s right to property under Article 40 of the Constitution in relation to parcel No. Kwale/Ukunda/50. b. An order is hereby made compelling the defendant to remove and re-route the power line traversing parcel No. Kwale/ Ukunda/50. C. The plainti is hereby awarded Kshs.300,000 as general damages for trespass. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5832/eng@2026-09-24 3

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d. The plainti is hereby awarded costs of the suit. It is so decided. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 24TH DAY OF SEPTEMBER 2026 Y. M. ANGIMA JUDGE In the presence of: Mr Donald Rono for the Plainti Mr Makori Ezra for the Defendant Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5832/eng@2026-09-24 4

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