Kenya Power & Lighting Company PLC v Vitalis Ouma Osano

approximately 4.0 hectares, in respect of which he was registered as absolute proprietor on 21st August 1984 under the Registered Land Act (Cap. 300), now repealed. 3. The dispute concerns three sets of electricity lines traversing the suit property, namely a 33kV overhead line running from Kisumu to Kakamega said to have been constructed in or about 1964; an 11kV overhead line serving the Kiboswa and Gambogi market link said to have been constructed in or about 1974; and a further 11kV line constructed in the years 2018/2019 to supply power to street lights along the Kisumu Kakamega Road. The Respondent's complaint is that none of these lines was placed on his land with his consent, that no compensation has ever been paid to him, and that in the course of those works and earlier in 2018 the Appellant's employees felled a substantial number of indigenous trees on the property. 4. It is convenient to record at the outset that the Respondent first brought his claim before this Court in Kisumu ELC No. 32 of 2020. That suit was struck out on JUDGMENT ELCA NO. E020 OF 2024 2

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3rd September 2021 for want of jurisdiction, the dispute being one falling within the exclusive original jurisdiction of the Energy and Petroleum Tribunal under the Energy Act, 2019. The Respondent thereafter filed his claim before the Tribunal on 13th June 2022. The claim before the Tribunal 5. Before the Tribunal the Respondent was the Claimant and the Appellant the Respondent. For clarity and to avoid confusion, I shall in this judgment refer to the parties by the designations they bear in this appeal, and to the witnesses by the designations under which they testified before the Tribunal. 6. The Respondent's case, shortly stated, was that he is the registered proprietor of the suit property; that the Appellant has installed three sets of electricity lines across it; that the first is a 33kV line and the second a low voltage line running parallel to it; that the third and most recent was installed to provide electric power to street lights along the Kisumu Kakamega Road; that his consent was never sought or obtained prior to the JUDGMENT ELCA NO. E020 OF 2024 3

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installation, maintenance or expansion of any of those lines; that the Appellant's employees cut down his trees without notice to him; and that approximately 1.6 acres of his land can no longer be used on account of the power lines and poles placed upon it. 7. On that basis the Respondent sought a declaration that the Appellant had trespassed upon the suit property; general damages for continuing trespass; special damages for the destruction of trees and for the value of the portion of land rendered unusable; costs; and interest. 8. The Appellant resisted the claim. Its defence, as pleaded in its Statement of Defence and developed in the evidence of its witnesses, was fourfold. First, that its electricity infrastructure lies squarely within the eightmetre road reserve and not on the Respondent's land at all. Secondly, that the wayleave trace over which the lines run was sought from and granted by the relevant arms of Government in the 1960s and 1970s, long before the Respondent acquired the suit property in 1984. Thirdly, that at the material time the land in the JUDGMENT ELCA NO. E020 OF 2024 4

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area had not been adjudicated and therefore vested in the Government, so that no private consent was required. Fourthly, that in any event electric supply lines constructed by virtue of powers conferred by written law are overriding interests to which the Respondent's registration is subject. 9. The Appellant further contended that no new power line was constructed in 2018/2019; that what was done was an improvement upon the existing 11kV overhead line for which it held the requisite approvals, carried out within the road reserve; that special damages had not been strictly proved; and that the photographs relied upon by the Respondent were inadmissible for want of a certificate under section 106B of the Evidence Act, Cap. 80. The evidence before the Tribunal 10. The Tribunal heard the matter and also conducted a visit to the suit property, the hearing thereafter proceeding on that basis. Three witnesses testified for the Respondent and two for the Appellant. JUDGMENT ELCA NO. E020 OF 2024 5

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11. CW1, Vitalis Ouma Osano, the Respondent, testified to the destruction of trees on the property and stated that the Appellant's power lines were placed on the property without his consent and without compensation. He produced his title deed and an official search certificate as proof of ownership. 12. CW2, Robert Kisanya, a land economist and property valuer, testified that on 10th February 2019 he inspected the property at Kona Mbaya for purposes of compensation; that the land he valued had been bypassed by high voltage power lines; and that his report was dated 20th August 2019. As to the extent of the affected portion, his evidence as recorded gives the measurements in one place as 325 metres by 28 metres and in another as 235 metres by 28 metres, and puts the acreage at 0.65 hectares, which he described as the equivalent of 1.6 acres. He said he used a measuring tape to take physical measurements of the property. 13. On cross-examination CW2 was taken to a number of matters. He confirmed that his annual practising licence was not attached to his report. He stated that his role JUDGMENT ELCA NO. E020 OF 2024 6

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was to assess the land that had been by-passed by the power lines, and that he was only interested in that part of the property. He confirmed that he took physical measurements and did not rely on a survey, and that he is not a surveyor, though he said that valuers undertake surveying as a unit within their training. He stated that he identified the boundaries from his own knowledge, saying that he knew the area well, and that the perimeter boundaries were evident on the ground. He confirmed that he did not investigate how long the power line had been in place, and that no land search was done, a search in his view not being mandatory. It is to be observed and the observation assumes importance later in this judgment that at no point was it put to CW2 that the sum at which he arrived was excessive, or that the basis upon which he had valued was the wrong basis. 14. CW3, Lilian Anyona Musenye, the Sub-County Forest Officer, Kenya Forest Service, Kisumu East and Central, testified that she prepared a report dated 7th November 2018 in respect of indigenous trees on the property; that JUDGMENT ELCA NO. E020 OF 2024 7

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the trees were of value for conservation, as a carbon sink, for economic purposes and for the control of soil erosion; and that she calculated their economic value. She spoke to a second report covering 25 trees with a calculated value of Kshs. 114,700/=. She testified that she visited the site immediately after the destruction of the trees, that the trees had been cut in March, and that her report was completed in November. The number of indigenous trees appears in her recorded evidence in one place as 152 and in another as 52. On crossexamination she was asked only what classifies a tree as indigenous. 15. RW1, Boniface Odawa Omollo, a Senior Surveyor employed by the Appellant, testified that the 11kV line runs along the road, at the centre of the road. He testified that the survey relied on existing boundaries, and that a survey map was procured showing general boundaries, which were accepted as the general boundaries of the property. His survey report appears in the record at pages 62 to 63. JUDGMENT ELCA NO. E020 OF 2024 8

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16. RW2, Dennis Namisi Otenge Khwatenge, the Appellant's Wayleaves Officer, testified that his duty is to seek the right of way for every project. He produced his witness statement together with a bundle of documents dated 31st March 2023. He testified that there are three lines on the property; that it was initially a single-phase line; and that those further lines were added when the street lighting project came in. He testified as to the process of seeking the right of way, referencing works for 2018/2019 and the construction of a low voltage to 11kV line, and produced the wayleave trace. He testified that a 33kV line on the property has been in place since 1964. 17. It was further noted in the proceedings that a submission was made that the land in question initially belonged to Nandi County Council, in relation to the question of compensation. 18. The documentary evidence before the Tribunal included the Respondent's title deed and official search; the two reports of the Sub-County Forest Officer together with a receipt for assessment fees of Kshs. 5,000/=; the JUDGMENT ELCA NO. E020 OF 2024 9

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valuation report dated 20th August 2019; photographs of the lines and of the felled trees; the Appellant's Statement of Defence, the witness statement of RW2, the survey report of RW1 and the Appellant's bundle of documents. That bundle included a letter dated 10th July 1964 from the Chief Engineer (Roads), Ministry of Works, to the correspondence Appellant's with the Wayleaves offices of the Officer; Regional Government Agents for Central Nyanza and Nandi Districts; a letter from the Department of Lands; drawing No. 03089 showing the proposed design of the 33kV overhead line; a letter dated 12th January 1974 from the Town Engineer, Municipality of Kisumu; and Kenya Power Survey Plan SK. No. 193 Sheet 12C. 19. The Appellant called no valuer. It commissioned no valuation of its own, either before the hearing or at any time since. It called no forester and commissioned no assessment of the trees felled. Those omissions are of consequence, and I return to them. 20. At the conclusion of the hearing the Tribunal directed the Respondent to file submissions by 21st February JUDGMENT ELCA NO. E020 OF 2024 10

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2024 and the Appellant by 28th February 2024, and fixed judgment for 25th March 2024. Judgment was delivered on 26th March 2024. The decision of the Tribunal 21. By its judgment the Tribunal found in favour of the Respondent and granted the following reliefs: (a) a declaration that the Appellant had trespassed onto the suit property without the Respondent's consent and caused permanent and irreparable damage thereto; (b) general damages for continuous trespass assessed at Kshs. 500,000/=; (c) special damages assessed at Kshs. 21,822,713/=; (d) costs of the suit to the Respondent; and (e) interest on (b), (c) and (d) above until payment in full. 22. The sum of Kshs. 21,822,713/= awarded as special damages was made up of two heads. The first was Kshs. 1,310,828/= in respect of the trees felled, being Kshs. 1,191,128/= under the Forest Officer's first report dated 7th November 2018 relating to damage occasioned on 14th and 15th March 2018, Kshs. 114,700/= under her JUDGMENT ELCA NO. E020 OF 2024 11

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second report relating to 25 trees damaged later in 2019, and Kshs. 5,000/= being assessment fees evidenced by a receipt. The second head was Kshs. 20,511,885/=, being the value attributed by CW2 to the portion of the suit property rendered permanently unusable by reason of the presence of the Appellant's transmission equipment. 23. It is that judgment and decree which the Appellant now impugns. The Appeal 24. The Memorandum of Appeal is dated 24th April 2024 and raises five grounds, which include the following; that the Tribunal erred in law and in fact and misdirected itself in declaring that the Appellant had trespassed onto the suit property despite clear evidence to the contrary; that it erred in awarding general damages of Kshs. 500,000/= and special damages of Kshs. 21,822,713/= when no trespass had been established and when neither head of damages had been proved to the requisite standard; and that it erred JUDGMENT ELCA NO. E020 OF 2024 12

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in admitting and relying upon photographs which did not comply with section 106B of the Evidence Act. 25. By directions of this Court the appeal was canvassed by way of written submissions. The Appellant's submissions are dated 13th February 2025 and the Respondent's submissions are dated 7th April 2025. I have read both sets of submissions and the authorities annexed to them with care. The Appellant's submissions 26. On the duty of a first appellate court the Appellant relied on Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, Peters v Sunday Post Limited [1958] EA 424, Santosh Hazari v Purushottam Tiwari (Deceased) [2001] 3 SCC 179 and Kurian Chacko v Varkey Ouseph AIR 1969 Kerala 316, and on section 78 of the Civil Procedure Act, for the proposition that this Court must subject the whole of the evidence to fresh and exhaustive scrutiny and arrive at its own independent conclusions. JUDGMENT ELCA NO. E020 OF 2024 13

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27. On Grounds 1 and 2 the Appellant submitted that the Tribunal failed to appreciate the uncontroverted survey report showing that its electricity infrastructure lies squarely within the road reserve, and the approvals for a wayleave trace sought and granted by Government in the 1960s. It was urged that the 33kV line was constructed in or about 1964 and was supplying electricity to the environs long before the Respondent acquired the suit property in 1984; that the requisite consents were obtained from the Ministry of Works Roads Branch, the offices of the Regional Government Agents for Central Nyanza and Nandi Districts and the Department of Lands; and that those offices had authority to issue such approvals because the land had not then been adjudicated and belonged to the Government. 28. As to the 11kV line, the Appellant submitted that it was constructed some ten years later, in or about 1974, within the wayleave trace on the road reserve already obtained in 1964, and that since the line was to serve areas within the then Kisumu Municipality between JUDGMENT ELCA NO. E020 OF 2024 14

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Kiboswa and Gambogi market, approval was sought from the Town Engineer of the then Town Hall of Kisumu Municipality. 29. The Appellant invoked section 28 of the Land Registration Act, 2012, submitting that all registered land is subject to the overriding interests there listed, which include rights of way subsisting at the time of first registration and electric supply lines or poles constructed or laid in pursuance or by virtue of any power conferred by any written law. It further invoked sections 143, 144, 146, 147 and 148 of the Land Act, 2012, and sections 26(1) and 28 of the Land Registration Act, and placed reliance on Omari Sefu Dzila v Telkom Kenya Limited & Kenya Power & Lighting Co. Ltd, Kwale ELC No. 36 of 2021. 30. On damages, the Appellant relied on Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR for the proposition that the measure of damages for trespass is the difference in the value of the plaintiff's property immediately before and after the trespass, or the cost of restoration, whichever is the less, and submitted that JUDGMENT ELCA NO. E020 OF 2024 15

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the Respondent adduced no evidence of the state or value of the property before and after the alleged trespass. On special damages it relied on Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR), David Bagine v Martin Bundi [1997] eKLR (citing Lord Goddard CJ in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177) and Union Bank of Nigeria PLC v Alhaji Adams Ayabule & another (2011) JELR 48225 (SC) for the proposition that special damages must be specifically pleaded and strictly proved. 31. The Appellant impugned the valuation report on the ground that CW2 did not produce documents evidencing his qualifications, including a registration certificate and a practising certificate, contrary to Rules 4 and 5 of the Valuers (Forms and Fees) Rules 1987 as read with sections 7, 8 and 9 of the Valuers Act, Cap. 532. It impugned the Forest Officer's reports on the grounds that during the site visit she was able to identify only the portion where trees were allegedly cut JUDGMENT ELCA NO. E020 OF 2024 16

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in 2019, being the portion within the eight-metre road reserve; that as to the trees allegedly cut in 2018 she said only that they were on the other side, which neither the Tribunal nor the Appellant had an opportunity to assess on the ground; and that there were no visible tree stumps for the 25 trees said to have been cut in 2019. 32. On Ground 5 the Appellant submitted that the Respondent's photographic exhibits are photographs whose authenticity cannot be ascertained because they do not comply with section 106B of the Evidence Act, and prayed that they be disregarded. The Respondent's submissions 33. The Respondent opposed the appeal in its entirety. On Grounds 1 and 2 he submitted that prior to the commencement of land adjudication in this country land was owned communally; both that individually the adjudication and sometimes process which culminated in land registration simply served to provide boundary delimitation of land holdings and registration JUDGMENT ELCA NO. E020 OF 2024 17

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thereof; and that it did not, in and of itself, confer ownership. 34. He submitted, tellingly, that this position finds support in the Appellant's own documents. The letter dated 10th July 1964 from the Chief Engineer (Roads) to the Appellant's Wayleaves Officer advises the addressee at clause (f) that consent for the wayleave must be sought from the relevant authority and owners of property. The letter dated 12th January 1974 from the Town Engineer, Municipality of Kisumu, informs the Appellant that land in Kisumu is largely un-adjudicated and has not been planned. What those letters demonstrate, it was urged, is that the very Government departments that gave the approvals acknowledged that individual owners had to be consulted, and that the incompleteness of the adjudication process did not mean that land had no ownership. It was further urged that the Town Engineer's letter makes clear that planning had not been done, so that what was at the time thought to be a road reserve, and hence a place where wayleaves could be created, might after planning turn out to be nothing of the sort. JUDGMENT ELCA NO. E020 OF 2024 18

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35. The Respondent submitted that the position of the Kisumu to Kakamega Road vis-à-vis the suit property, and especially the position of the power lines, which are constructed directly in the middle of the suit land, shows that the lines could not be part of any road reserve. As to the line constructed in 2018 to supply the street lights, it was clearly established at a time when the Respondent held title, his permission was never sought, and the arguments made in respect of the first two lines cannot be made in respect of that line. 36. He relied on section 24 of the Land Registration Act as vesting absolute ownership in the registered proprietor together with all rights and privileges appurtenant thereto, and on Hassan Mohammed Haji v Mohamed Keynan & another [2019] eKLR (citing Arthi Highway Developers Limited v West End Butchery Limited & others, Civil Appeal No. 246 of 2013 ) for the indefeasibility of title. He invoked Article 40 of the Constitution, and submitted that by asserting that the land was encumbered with the power lines before the Respondent bought it, the Appellant was in substance JUDGMENT ELCA NO. E020 OF 2024 19

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making the case that the land was set aside for a public utility and that the Respondent illegally acquired land meant for a public utility a case which could only be advanced in proceedings brought to revoke his title, and which has never been brought. He relied on Adan Abdirahani Hassan & 2 others v The Registrar of Titles & others, Nairobi Petition No. 7 of 2012 [2013] eKLR and Evelyn College of Design Ltd v Director of Children's Department & another [2013] eKLR for the proposition that even land thought to have been unlawfully acquired may only be recovered through due process. 37. The Respondent submitted that no evidence was adduced to demonstrate that the 33kV line was in fact built in 1964; that while correspondence was exchanged in 1964 concerning the Appellant's need to construct the line, no document was produced showing that the line was built in that year. He relied on sections 171 and 173 of the Energy Act, 2019, which require a person wishing to enter upon land other than his own for the development of energy infrastructure to seek the prior JUDGMENT ELCA NO. E020 OF 2024 20

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consent of the owner, and provide for compensation. He relied on section 3 of the Trespass Act, and on George Joseph Kang'ethe & another v Kenya Power and Lighting Company Limited [2020] eKLR and Eliud Njoroge Gachiri v Stephen Kamau Nganga, ELC No. 121 of 2017 on continuing trespass. 38. On special damages he submitted that the two Forest Officer's reports established the value of the trees felled; that the Appellant provided no report of its own to controvert those figures; and that its witnesses admitted that they are the ones who cut down the trees. On the valuation he submitted that the valuer was not controverted by any alternative valuation and that the Tribunal, having visited the site, was able to see the area in question and to note how the two parallel lines criss-cross the land. On general damages he relied on Duncan Nderitu Ndegwa v Kenya Power & Lighting Co. Limited & another [2013] eKLR for the proposition that once a trespass to land is established it is actionable per se, and on United India Insurance Co. Ltd v East Africa Underwriters (Kenya) Ltd JUDGMENT ELCA NO. E020 OF 2024 21

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[1985] KECA 39, for the guidelines governing appellate interference with an award of damages, submitting that none of those grounds had been made out. 39. On Ground 5 he submitted that a certificate under section 106B was unnecessary because the Tribunal visited the suit land and saw for itself the lines and the damage; that the Appellant itself produced photographs unaccompanied photographs by were any certificate; produced without and that the objection. He prayed that the appeal be dismissed with costs. Issues for determination 40. This being a first appeal, the parties are entitled to have this Court reconsider and re-evaluate the whole of the evidence tendered before the Tribunal and to draw its own conclusions of fact and law. The classic statement remains that in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, where the Court of Appeal for Eastern Africa said that an appeal from the trial court is by way of retrial and the appellate court is not bound necessarily to follow the trial court's JUDGMENT ELCA NO. E020 OF 2024 22

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findings of fact if it appears either that the court failed to take account of particular circumstances or probabilities, or if the impugned finding is not based on the credibility of witnesses but on other evidence. 41. That jurisdiction is, however, qualified. As was said in Peters v Sunday Post Limited [1958] EA 424, an appellate court will not lightly differ from the trial court on a finding of fact, and will bear constantly in mind that it has neither seen nor heard the witnesses. Where a finding turns upon the demeanour and credibility of witnesses, the advantage enjoyed by the tribunal of first instance is one which an appellate court cannot recapture from the printed record. 42. That caution has particular force in the present case. The Tribunal did not merely see and hear the witnesses. It went to the ground. It conducted a visit to the suit property and thereafter heard the evidence on that footing. A view has long been recognised as a species of evidence, and the impressions formed by a tribunal which has stood upon the land, seen where the lines run, seen the poles and seen the stumps or the absence JUDGMENT ELCA NO. E020 OF 2024 23

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of them, are impressions which I cannot reproduce from a record of appeal. Where, therefore, the Tribunal's conclusions rest upon what it saw, I shall interfere only if satisfied that those conclusions are unsupported by, or contrary to, the evidence as a whole. 43. Where the complaint is directed not to a finding of primary fact but to an award of damages, the constraints upon an appellate court are narrower still and are authoritatively stated by the Court of Appeal in Kemfro Africa Limited t/a "Meru Express Services (1976)" & another v Lubia & another (No. 2) [1985] KECA 137 (KLR). An appellate court will not disturb an award of damages unless it is satisfied that the tribunal below, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately high or so inordinately low as must be a wholly erroneous estimate of the damage. It is not enough that the appellate court would itself have arrived at a different figure. JUDGMENT ELCA NO. E020 OF 2024 24

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44. Having considered the Memorandum of Appeal, the record, the rival submissions and the authorities cited, I frame the issues falling for determination in this appeal as follows: (i) Whether the Tribunal erred in finding that the Appellant continues to had trespassed, trespass, upon the and suit property; (ii) Whether the Tribunal erred in awarding the Respondent special damages of Kshs. 21,822,713/=; (iii) Whether the Tribunal erred in awarding the Respondent general damages of Kshs. 500,000/= for continuing trespass; (iv) Whether the Tribunal erred in admitting and relying upon the Respondent's photographic exhibits; and (v) What orders ought to issue as to interest and costs. Analysis and Determination (i) Whether the Appellant trespassed upon the suit property 45. Trespass to land is the unjustifiable interference with land in the possession of another. It is actionable at the JUDGMENT ELCA NO. E020 OF 2024 25

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suit of the person in possession without proof of damage. Where a defendant admits the entry but pleads justification whether by consent, by grant, by statutory authority or by an overriding interest the burden of establishing that justification rests upon him. That is the effect of section 107 of the Evidence Act, and it is the principle which underlies section 3(2) of the Trespass Act, Cap. 294, which places upon the person charged the burden of proving that he had reasonable excuse or the consent of the occupier. 46. The Respondent's proprietorship is not in issue. He produced a title deed and an official search establishing that he was registered as absolute proprietor of KISUMU/KANYAKWAR "B"/135 on 21st August 1984. The Appellant has never challenged that title. It has brought no proceedings to revoke or rectify it. Section 24(a) of the Land Registration Act, 2012 vests in the registered proprietor the absolute ownership of the land together with all rights and privileges belonging or appurtenant thereto, and sections 25 and 26 render that title indefeasible save on the grounds there stated. The JUDGMENT ELCA NO. E020 OF 2024 26

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Respondent's complaint therefore begins from an unassailable foundation. 47. The Appellant's first answer is that the lines are not on the land at all but within the eight-metre road reserve. That is a question of fact, and it is a question on which the Appellant called evidence. It is also a question on which, in my judgment, its own evidence defeats it. 48. RW1, the Appellant's Senior Surveyor, was candid. He testified that the survey relied on existing boundaries, and that a survey map was procured showing general boundaries, which were accepted as the general boundaries of the property. That is a significant concession. Under section 18(1) of the Land Registration Act, 2012 and, before it, section 21 of the repealed Registered Land Act the boundaries shown on a registry map are general boundaries only, and do not determine the precise line of the boundary. A general boundary is an approximation. It is precisely the instrument one may not use when the question to be answered is whether a pole stands six metres or nine metres from a boundary line. To prove that its infrastructure lies "squarely" JUDGMENT ELCA NO. E020 OF 2024 27

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within an eight-metre reserve, the Appellant needed a fixed-boundary survey referenced to the surveyed beacons of the parcel. It produced no such survey. The report of RW1 cannot bear the weight the Appellant places upon it, and the description of it in the submissions as "irrefutable proof" is, with respect, considerably overstated. 49. Set against that is the evidence of RW2, the Appellant's own Wayleaves Officer. His evidence, as recorded, is that "there are three lines on the property". That is not the language of a witness describing infrastructure confined to a public road reserve. It is an admission, made by the officer whose very function is to seek the right of way for every project, that the Appellant's lines stand upon the Respondent's parcel. An admission of that character, from that source, is powerful evidence. 50. To this must be added the Tribunal's own observations upon the site visit. It saw the two parallel lines crisscrossing the land. It saw, as the Respondent's submissions put it, the manner in which the power lines cover the land. A tribunal which has stood on the land JUDGMENT ELCA NO. E020 OF 2024 28

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and formed the view that the lines run through the middle of the parcel rather than along its edge has made a finding of the kind an appellate court is least equipped to disturb. I see no basis whatever for disturbing it. I find as a fact that the Appellant's three lines traverse the suit property. 51. The Appellant's second answer is that in 1964 the land had not been adjudicated and therefore belonged to the Government, so that no private consent was required. I am unable to accept that proposition. Land adjudication does not create ownership; it ascertains, delimits and records rights already existing on the ground. Before adjudication land in this country was held individually and in some instances communally, under customary tenure which the law recognised. The adjudication and registration process converted those interests into registered interests; it did not bring them into existence. To say that Government unadjudicated land at that large, so belonged anyone to the holding a Government approval might enter upon it at will, is to misstate both the history and the law. JUDGMENT ELCA NO. E020 OF 2024 29

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52. More importantly, the Appellant's own documents contradict it. The letter of 10th July 1964 from the Chief Engineer (Roads) to the Appellant's Wayleaves Officer provided that consent for the wayleave must be sought from the relevant authority and owners of property. The Chief Engineer (Roads) was, self-evidently, concerned with roads. His competence extended to the road reserve of the trunk road and no further. There was a requirement to go to the owners. That condition is only intelligible on the premise that there were owners to go to. The Appellant received that instruction in 1964 and, on the evidence before the Tribunal, never complied with it. 53. The letter of 12th January 1974 from the Town Engineer, Municipality of Kisumu, takes the matter no further. It informed the Appellant that land in Kisumu is largely unadjudicated and has not been planned. That is a statement of an existing state of affairs, not a grant. Indeed, as the Respondent rightly submits, it carries within it a warning: where planning has not been done, what is presently assumed to be a road reserve may, JUDGMENT ELCA NO. E020 OF 2024 30

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upon planning, prove not to be a road reserve at all. A provisional and qualified communication of that kind cannot found a permanent proprietary right over a defined parcel of private land. 54. I have examined the approvals relied upon as a whole. Not one of them identifies KISUMU/KANYAKWAR "B"/135 or the land from which it was carved. Not one of them is a wayleave grant in favour of the Appellant over that parcel. They are general administrative correspondence of the era, permitting the Appellant to proceed with a route in broad terms and, in the case of the 1964 letter, expressly reserving the position of owners. Nor is there any registered instrument. The Appellant has been unable to point to any entry on the register, any wayleave agreement, any consent, any award or any payment of compensation referable to this land at any time in the last sixty years. 55. The third answer is section 28 of the Land Registration Act, 2012. The Appellant is right that registered land is subject to the overriding interests there listed, and that those include rights of way subsisting at the time of first JUDGMENT ELCA NO. E020 OF 2024 31

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registration and electric supply lines or poles constructed or laid in pursuance or by virtue of any power conferred by any written law. But the words of that provision must be read as a whole. The phrase "in pursuance or by virtue of any power conferred by any written law" is a phrase of limitation, not of dispensation. It protects lines lawfully placed. It does not convert an unlawful placement into an overriding interest merely because the intruder happens to be a statutory undertaker. Were it otherwise, the utility could place its lines anywhere it pleased and then plead the very unlawfulness of its entry as the source of its right. The provision cannot bear a construction so circular. The Appellant having failed to establish the written authority under which these lines were laid over this parcel, section 28 does not assist it. For the same reason, the plea of a right of way subsisting at first registration fails: no such subsisting right was proved. 56. Sections 143 to 148 of the Land Act, 2012 are likewise of no avail. Those provisions empower the National Land Commission to grant wayleaves, but they are provisions JUDGMENT ELCA NO. E020 OF 2024 32

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of 2012 and cannot retrospectively validate entries made in 1964 and 1974. In any event they are conditioned upon notice to affected owners and upon compensation. No wayleave granted under them is before this Court. 57. The Appellant placed reliance on a decision of this Court sitting at Kwale. That decision is distinguishable upon its facts: it was a case in which a claimant simply failed to prove his claim of trespass to the required standard. Here the position is the reverse. Proprietorship is admitted; entry is admitted; the Appellant's own wayleaves officer places the lines on the property; and the Tribunal saw them there. 58. All of the foregoing is sufficient to dispose of Grounds 1 and 2. But there is a further and, to my mind, conclusive consideration, and it concerns the third line. It is common ground indeed it is RW2's own evidence that further lines were added when the street lighting project came in, and that works were undertaken in 2018/2019 involving the construction of a low voltage to 11kV line. The Appellant characterises this as an improvement JUDGMENT ELCA NO. E020 OF 2024 33

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upon an existing line rather than the construction of a new one. With respect, the distinction avails it nothing. Whether the Appellant strung a new conductor, raised new poles or upgraded an existing circuit, it entered upon the Respondent's registered land in 2018/2019 and carried out works there. 59. By 2018 the Respondent had been the registered proprietor for thirty-four years. Section 171(1) of the Energy Act, 2019 requires a person who wishes to enter upon land other than his own to undertake activities relating to the development of energy infrastructure, including the laying or connecting of electric supply lines, or to carry out a survey of the land for that purpose, to seek the prior consent of the owner, such consent not to be unreasonably withheld; and where the owner cannot be traced, to give notice in the manner there prescribed. Section 173 provides for the compensation which follows upon such consent. The Respondent was neither untraceable nor unwilling to be found; his name was on the register. No consent was sought. No notice was given. No compensation was JUDGMENT ELCA NO. E020 OF 2024 34

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offered. Whatever may be said about the events of 1964 and 1974, the works of 2018/2019 were an unlawful entry upon registered private land, and they are by themselves sufficient to sustain the declaration which the Tribunal made. 60. Trespass of this character is continuing. The lines remain. The poles remain. Each day on which they remain without lawful authority is a fresh invasion of the Respondent's right to the exclusive occupation and enjoyment of his land, and the wrong is renewed from day to day so long as the invasion endures. 61. One final observation on this issue. The Appellant submitted that compensation for the use of land by way of wayleave is paid once only, at the initial point of seeking approvals, and not to each subsequent owner. As a general proposition about a lawfully constituted and duly compensated wayleave, that may well be so. But it presupposes the very thing the Appellant has failed to prove: that a wayleave was lawfully constituted and that compensation was once paid. On this record, it JUDGMENT ELCA NO. E020 OF 2024 35

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was not. The Appellant cannot rely upon the incidents of a right it never acquired. 62. Grounds 1 and 2 accordingly fail. The declaration of trespass and continuing trespass made by the Tribunal is affirmed. (ii) Whether the award of special damages was justified 63. The principle governing special damages is settled and both parties stated it correctly. Special damages must be specifically pleaded and strictly proved. In Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR) an authority upon which this very Appellant relies the Court of Appeal put it thus: special damages "must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit." The same principle appears in the case of David Bagine v Martin Bundi [1997] eKLR. 64. Two features of that formulation deserve emphasis, because the Appellant's argument passes over both. The first is the qualification "with as much particularity as JUDGMENT ELCA NO. E020 OF 2024 36

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circumstances permit". Strict proof is not a fixed quantum of paper. It is proof of such a character as the nature of the loss admits of. The second is that the Court of Appeal in Capital Fish expressly recognised that special damages "could be proved by other means" than receipts and invoices. What the Court there deprecated was not the absence of receipts but the absence of credible evidence where a colossal sum was demanded. The question in every case is therefore not whether receipts were produced but whether the claimant laid before the tribunal credible material of a kind appropriate to the loss claimed. 65. In respect to the tress and the sum of Kshs. 1,310,828/=, this head was pleaded. It was proved by CW3, the Sub-County Forest Officer of the Kenya Forest Service a public officer with statutory responsibility in the field, who attended the site, enumerated the trees, assessed their economic value and reduced her findings to two written reports which were produced in evidence, together with a receipt for the assessment fees of Kshs. 5,000/=. The first report, dated 7th November 2018, JUDGMENT ELCA NO. E020 OF 2024 37

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addressed damage occasioned on 14th and 15th March 2018 and valued the trees destroyed at Kshs. 1,191,128/=. The second addressed 25 trees and valued them at Kshs. 114,700/=. Those three figures together yield exactly the sum awarded under this head. 66. Critically, the cutting was not denied. The Appellant's witnesses admitted that it was the Appellant's people who cut the trees. The Appellant called no forester, commissioned no counter-assessment and put forward no alternative figure, either before the Tribunal or in this appeal. Its challenge is confined to matters of weight: that no stumps were visible for the 25 trees at the site visit, and that the 2018 trees were said to be "on the other side" and were not inspected. Those are proper matters for a tribunal of fact to weigh, and the Tribunal which, unlike me, walked the ground weighed them and accepted the Forest Officer's evidence. CW3 explained that she visited the site immediately after the destruction, that the trees had been cut in March, and that her report was completed in November; the passage of some years between the felling and the site JUDGMENT ELCA NO. E020 OF 2024 38

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visit of 2024 is an entirely adequate explanation for the absence of visible stumps. I cannot say that the Tribunal's conclusion was one that was not open to it. 67. I note the discrepancy in the recorded evidence of CW3 as to the number of indigenous trees, which appears in one place as 152 and in another as 52. That discrepancy is not one upon which the award turns: the sums awarded are those computed in the two written reports which were produced as exhibits, and the arithmetic of those reports has never been challenged by any evidence. The award under this head was properly made and I decline to disturb it. 68. In respect to the land and the sum of Kshs. 20,511,885/=, the Appellant's attack on this head is, on analysis, a complaint that the Tribunal believed a valuer whom the Appellant did not trouble to answer. For the reasons which follow, that complaint cannot succeed. 69. The claim was specifically pleaded. It was supported by a written valuation report dated 20th August 2019. The report was not tendered from the bar or slipped in as a document of unknown provenance: its maker attended, JUDGMENT ELCA NO. E020 OF 2024 39

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gave evidence on oath as CW2, explained his professional standing as a land economist and property valuer, described his inspection of 10th February 2019, explained how he had measured the affected portion, and submitted himself to cross-examination. That is evidence of precisely the character which the nature of this loss admits of. A landowner whose land has been permanently burdened by a transmission wayleave cannot produce a receipt for the burden. He can produce a valuation. The Respondent produced one. 70. Against that, the Appellant produced nothing. It called no valuer. It commissioned no valuation, either at the time of the works, or when the claim was made, or before the hearing, or in the years since. It has not produced one even for the purposes of this appeal. A party which invites a tribunal to reject a professional valuation as excessive, while declining to obtain and put before that tribunal any valuation of its own, asks the tribunal to prefer counsel's assertion to an expert's sworn opinion. Tribunals of fact are not obliged to accede to such an invitation, and this one did not. JUDGMENT ELCA NO. E020 OF 2024 40

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71. The matter goes further, and this is the point upon which, in my view, the ground founders. It is a rule of practice of long and salutary standing that a party who intends to invite the court to disbelieve a witness, or to reject the basis of his opinion, must put that case to the witness while he is in the box, so that he may have the opportunity of answering it and the tribunal the opportunity of assessing his answer. The cross- examination of CW2 is on the record. It was directed to his practising licence, to his not being a surveyor, to his having used a tape rather than a survey, to his having identified boundaries from local knowledge, and to the absence of a search. Not one question was directed to the figure of Kshs. 20,511,885/=. It was never suggested to him that the sum was excessive. It was never suggested to him that he had valued on a wrong basis, or that some other basis of valuation ought to have been adopted. The argument that the wrong measure was applied was raised for the first time in submissions, when the witness was long gone and could not answer it. JUDGMENT ELCA NO. E020 OF 2024 41

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72. A tribunal of fact confronted with an expert opinion which is neither contradicted by other expert evidence nor challenged in cross-examination as to its substance is not merely entitled to accept it; it would require some positive reason apparent on the face of the material to reject it. No such reason was apparent here. The Tribunal accepted the valuation. That was a conclusion plainly open to it on the evidence before it, and it is not the office of a first appellate court to substitute a different view of expert evidence which it has neither heard nor seen tested. 73. Nor, it must be said, was the Tribunal left with the valuer's word alone. It went upon the land. It saw the affected portion. It saw how the two parallel lines crisscross the parcel and the manner in which the power lines and poles cover the land. The extent of the sterilisation which CW2 had measured was thus corroborated by the Tribunal's own observation of the ground, which is a species of evidence in its own right and one peculiarly within the province of the tribunal of first instance. JUDGMENT ELCA NO. E020 OF 2024 42

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74. I have considered whether the award can be said to offend principle on the footing that the Respondent retains his registration over the affected portion and yet recovers its value. I do not think it can, for three reasons. 75. First, the premise of the objection mistakes the nature of what has been lost. The award does not compensate the transfer of an interest; it compensates the permanent destruction of the beneficial use of a defined portion of land. The strip beneath and about a high voltage transmission wayleave cannot be built upon. It cannot be planted with trees as this very case demonstrates, the Appellant fells whatever grows there. It cannot be dealt with freely, and no prudent purchaser or financier would take it at its unencumbered worth. A registration which confers no beneficial use is a title in name. The law of damages looks to substance, and in substance that portion has been taken from the Respondent as surely as if it had been fenced off. 76. Secondly, the trespass here is not transient but permanent in its character. Where a wrong is of its JUDGMENT ELCA NO. E020 OF 2024 43

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nature continuing and permanent, the loss it inflicts is a permanent loss, and it is neither artificial nor excessive to measure that loss by reference to the value of what has been permanently sterilised. To confine the Respondent to a modest sum for an injury which will outlast him, and which the Appellant has no intention of abating, would be to leave him substantially uncompensated. 77. Thirdly, Article 40 of the Constitution guarantees the right to acquire and own property and forbids the deprivation of property or of any interest in or right over property save in accordance with the Constitution and upon prompt payment in full of just compensation. The Appellant has taken the use of this strip and has paid nothing. The Constitution does not permit a taking to pass uncompensated merely because the register was left undisturbed. As the Supreme Court emphasised in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR), it is through a legally established process, and not by occupation, that rights in land are altered. The Appellant JUDGMENT ELCA NO. E020 OF 2024 44

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chose occupation. Having done so, it cannot complain that it is required to pay for what it took. 78. I should deal, finally, with the question of the extent of the affected portion, which is not free from difficulty on the face of the record. CW2's evidence as recorded gives the dimensions of the strip in one place as 325 metres by 28 metres and in another as 235 metres by 28 metres. He himself, however, put the acreage at 0.65 hectares, which he described as the equivalent of 1.6 acres a figure which corresponds to the second set of dimensions and which is the figure carried into his report and pleaded in the claim. It is that figure, and no other, upon which the Tribunal proceeded. The assertion in the Respondent's submissions in this appeal that the affected portion measures 1.6 hectares, or four acres, is an error of counsel; it forms no part of the Tribunal's reasoning and cannot unsettle a finding founded upon the report. The Tribunal awarded upon the valuer's own measurement, consistently applied, and the award is not vitiated by a slip made afterwards in argument. JUDGMENT ELCA NO. E020 OF 2024 45

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79. Applying Kemfro Africa Limited t/a "Meru Express Services (1976)" & another v Lubia & another (No. 2) [1985] KECA 137 (KLR), I ask myself whether the Appellant has shown that the Tribunal took into account an irrelevant factor, or left out of account a relevant one, or that the award is so inordinately high as to be a wholly erroneous estimate of the damage. It has shown none of these things. It has shown only that it disagrees with a figure which it never met with evidence and never challenged in cross-examination. That is not a ground upon which this Court may interfere. 80. Grounds 3 and 4, so far as they concern special damages, fail. The award of Kshs. 21,822,713/= is affirmed in full. (iii) Whether the award of general damages was justified 81. Trespass to land is actionable per se. Once the trespass is established the claimant is entitled to general damages without proof of any particular pecuniary loss, the injury lying in the invasion of his right to exclusive possession. The JUDGMENT ELCA NO. E020 OF 2024 Appellant's submission that the 46

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Respondent adduced no evidence of the value of his property before and after the trespass, whatever its force in relation to special damages, has no application to general damages at all. 82. The principles governing appellate interference with an award of general damages are those stated in Kemfro Africa Limited t/a "Meru Express Services (1976)" & another v Lubia & another (No. 2) [1985] KECA 137 (KLR) and, earlier, in United India Insurance Co. Ltd v East Africa Underwriters (Kenya) Ltd (Supra) upon which the Respondent relied. This Court will interfere only where the tribunal below misdirected itself in law, or misapprehended the facts, or took into account a consideration it ought not to have taken into account, or failed to take into account a consideration it ought to have taken into account, or where the award is so inordinately high or so inordinately low as to represent an entirely erroneous estimate. 83. None of those grounds is made out. The Respondent has had three sets of high voltage and low voltage lines placed across his four hectares, the most recent of them JUDGMENT ELCA NO. E020 OF 2024 47

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in 2018/2019 without so much as an enquiry addressed to him; he has had his indigenous trees felled without notice; and he has received not a shilling in compensation in more than six decades. A figure of Kshs. 500,000/= for a continuing trespass of that duration and character is not inordinately high. It is, if anything, moderate. Ground 3, so far as it concerns general damages, fails, and the award of Kshs. 500,000/= is affirmed. (iv) Whether the photographs were wrongly admitted 84. Section 106B of the Evidence Act, Cap. 80 governs the admissibility of electronic records and requires, by subsection (4), a certificate identifying the electronic record and describing the manner of its production. The Appellant complains that the Respondent's photographic exhibits were received without such a certificate. 85. The complaint fails for three independent reasons. First, no objection was taken when the photographs were tendered. An objection to the admissibility of a document must be taken at the time it is produced, so JUDGMENT ELCA NO. E020 OF 2024 48

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that the party tendering it has the opportunity to cure the defect. A party who stands by while a document goes in, cross-examines upon it and addresses upon it, cannot resurrect the objection for the first time on appeal. Secondly, the Appellant itself produced photographs, appearing at pages 71 to 75 of the Record of Appeal, unaccompanied by any certificate. It cannot approbate and reprobate; it cannot ask this Court to receive its own uncertified photographs while excluding the Respondent's. Thirdly, and decisively, the photographs were not the sole or even the principal evidence of the matters they depicted. The Tribunal visited the suit land. It saw the lines and it saw the damage with its own eyes. The photographs were, at most, a convenient record of what the Tribunal independently observed. Even if they were excluded from consideration altogether, the findings of the Tribunal would stand undisturbed upon the remaining evidence. 86. Ground 5 fails. JUDGMENT ELCA NO. E020 OF 2024 49

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(v) Interest and costs 87. The Tribunal awarded interest on general damages, special damages and costs until payment in full, but did not specify the dates from which interest was to run. That is an omission which this Court may properly supply, not by way of variation but for the avoidance of doubt in the execution of the decree. In accordance with settled practice, interest on special damages runs from the date of filing of the claim, the loss having by then already been sustained, while interest on general damages runs from the date of the judgment by which they were assessed. The claim was filed before the Tribunal on 13th June 2022 and judgment was delivered on 26th March 2024. 88. As to the costs of the proceedings before the Tribunal, the Respondent succeeded there in full, and the Tribunal's order as to costs is affirmed. 89. As to the costs of this appeal, costs follow the event. The Appeal has failed and the Appellant shall bear the costs of the appeal. JUDGMENT ELCA NO. E020 OF 2024 50

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Final orders 90. In the result, and for the reasons set out above, I make the following orders: (i) The appeal is dismissed. (ii) The judgment and decree of the Energy and Petroleum Tribunal delivered on 26th March 2024 in EPA/E017/2022 are affirmed in their entirety. (iii) For the avoidance of doubt, the award of special damages of Kshs. 21,822,713/= stands, and shall carry interest at court rates from 13th June 2022 until payment in full. (iv) For the avoidance of doubt, the award of general damages of Kshs. 500,000/= for continuing trespass stands, and shall carry interest at court rates from 26th March 2024 until payment in full. (v) The Appellant shall bear the costs of this appeal. JUDGMENT ELCA NO. E020 OF 2024 51

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DATED, SIGNED and DELIVERED at KISUMU this 30 th day of September 2026. E. K. WABWOTO JUDGE In the presence of: Ms. Owano for the Appellant. Ms. Wanyangu h/b for Mr. Onyango for the Respondent. Court Assistant; Joanne Omondi. JUDGMENT ELCA NO. E020 OF 2024 52

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