Kenya Power & Lighting Company Limited v Spedag Interfreight Kenya Limited

4. The Defendant further stated that this court has no jurisdiction to hear and determine the suit. That this suit is based on an alleged way leave agreement and is a claim for damage allegedly sustained by the Plaintiff in purported breach of the way leave agreement. That the Plaintiff has also pleaded trespass on property as an alternative cause of action. That the Environment and Land Court has jurisdiction to hear such matters. 5. The Defendant averred that the alleged way leave agreement is between the East African Power and Lighting Company Limited and one Ajit Singh Bhogal and that the Plaintiff is distinct and separate from the East African Power and Lighting Company Limited. That the alleged way leave agreement is a registrable instrument but was not registered, meaning it is void and an unenforceable against third parties, and that the Defendant is not a party to that agreement. 6. That according to the way leave agreement, only one power transmission line was to be erected but the Plaintiff erected two additional lines thereby lessening the total floor area on the property and severely limiting the size of land available for use by the Defendant. 7. The Defendant stated that under the way leave agreement, Ajit Singh Bhogal granted the East African Power and Lighting Company Limited a 30 metre way leave trace. That the Plaintiff then sought from Ajit Singh Bhogal an expansion of that way leave trace to pass more power transmission lines over the same property but permission was declined. 8. That the Plaintiff then requested for permission to pass those additional lines over the same property but along the pre-existing way leave trace on condition that the way leave be reduced to 20 meters which was agreed. That in violation of that agreement, the Plaintiff passed the additional lines outside the pre-existing way leave trace with the result that the illegal way leave occupied more than 40 meters. 9. The Defendant averred that after the Plaintiff was denied additional way leave by Ajit Singh Bhogal, the Plaintiff allegedly approached the Municipal Council of Mombasa which on 4th April 1999 approved the additional 132 KV line over the same property on condition that the additional lines be kept within the pre-existing way leave. That the Municipal Council of Mombasa had no authority to grant approvals relating to private properties but the Plaintiff in violation of the term of that approval erected two additional power transmission lines outside the pre-existing way leave. 10. The Defendant stated that by a letter dated 22nd May 2001, Ajit Singh Bhogal complained to the Plaintiff about this which complaint was disregarded. That when the Plaintiff erected two additional lines to 132 KV line, it knew that the 132 KV line was dangerously close to the ground. That there is a pending suit, Mombasa High Court Civil Suit No. 276 of 2006 between Ajit Bhogal and the Plaintiff in relation to the alleged way leave and the said power transmission lines, and that the Plaintiff cannot enforce any rights until the suit is heard and determined. 11. The Defendant denied allegations that the Plaintiff repaired the alleged damage on the 132 KV line on 26th May 2014 or any date thereafter. That on the said date, Mr. Samuel Abira driving motor vehicle registration number KBG 778Y, Toyota Mark II was admitted to the property but he did not have any ladders and did not carry out repairs to the lines in the ten minutes that he was on the property. That on 27th May 2014, Samuel Abira was admitted into the property while driving a Toyota Land Cruiser but he did not carry out any repairs to the line. That from 26th May 2014 to date, no repairs have been carried out on the section of the 132 KV line running across and overhead the property in issue. 12. The Defendant denied that the Plaintiff lost 2,609,180 kilowatt hours valued at Kshs. 52,992,394.85. That electricity bills contain other charges including fuel cost charge, forex adjustment, inflation adjustment, electricity regulation commission levy, rural electrification program levy, and VAT. That https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 2

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the Defendant is unable to fully plead on the quantum of the alleged loss owing to the Plaintiff’s failure to clarify whether the average price of Kshs. 20.3 per kilo watt hour is the cost of selling electricity from the producers. 13. The Defendant averred that in a judgment delivered on 10th July 2017, the Defendant employees and officers were acquitted of all charges in Criminal Case No. 1045 of 2014 for reasons that there was no damage to the electric power supply line and that the alleged way leave was not registered. The Defendant also stated that the dispute of the way leave on the property was referred to the Electricity Regulatory Board, which dispute has not been resolved and that this court ought not to interfere with jurisdiction of the board. 14. That in further answer to the allegation of damage to the power line based on a statement by a crane/ front loader operator, Abdulrehman Ali Mohamed Jadeja, the said statement is in English while Mr. Jadeja could not read or speak English. That the statement was written by a person who did not identify himself as a police officer, Mr. Jadeja was not advised of his right to legal representation before signing the statement, the statement was not translated to him in a language he understands, he was not warned that the statement would be used against him, and that the statement was incorrect in so far as it related to what he saw. 15. The matter proceeded to hearing where the Plaintiff testified. PW1, Mohamed Amiyo, the county operations and maintenance engineer at Kenya Power adopted his statement dated 25th January 2022 as part of his evidence. He also produced a way leave agreement between Ajit Singh Bhogal and Kenya Power in respect of plot number 571 Section V Mainland North in the Plaintiff’s bundle of documents filed on 24th May 2017 as Exhibits PExh 1 -9. PW1 said that he knew the late Samuel Abira whom he worked with and who handled maintenance of the power transmission lines. 16. On cross examination by Mr. Khagram, PW1 said that he was responsible for maintenance of distribution lines while the late Mr. Abira was in charge of transmission. That the affected line was a transmission line and therefore outside his docket. He said that he perused the Plaintiff’s file relating to the incident and familiarized himself with the facts. He said that he did not visit the scene but he was aware that there were 4 power lines cutting across the property. He said that he was aware that for each construction of a line, there has to be a way leave agreement and a drawing. 17. PW1 on further cross examination said that on 26th May 2014, he did not visit the site and he was not involved in locating the trip. He said that he relied on Mr. Abira’s findings. He said he could not confirm how the crane came into contact with the line causing a huge light and sparks as stated in paragraph 9 of his statement. He said he could also not confirm the condition in which the crane operator was found and that he was not aware whether some of the directors of the Defendant were charged or acquitted of the criminal charges. He said that the original way leave agreement was with the way leave department and that he was not aware that a civil case was filed before the ELC in which judgment was delivered in 2020. 18. PW2, Charles Eric Maloba, the Chief Engineer at Kenya Power adopted his statement dated 17th May 2017 as his evidence. He said that in the Plaintiff’s bundle of documents, there is a picture at page 11, the NCC Power Flow, and that if there was no power flow, the system would indicate ‘0’. That the documents at pages 12 – 18 are called System Log Sheets showing power generation on a daily basis. That at paragraph 24 of his statement, he made reference to figure 24,889,128 kilowatts which was the total generation for 28th April 2014. That at page 19, there was a summary for 28th April 2014 which confirms the megawatts figure and the average was 24,687.02 megawatt hours. That the loss was therefore 3,272.93 on 26th May 2014, therefore the value of the loss was Kshs. 52,992,394.85. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 3

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19. On cross examination by Mr. Khagram, PW2 said that he was trained in electrical engineering and no financial background except knowledge of financial matters to enable him perform his duties as a sectional head. He said he could not ascertain the financial position of Kenya Power between 2010 to 2020 and he could not tell whether any statements of account were produced before court. He said that the cost of producing electricity varies from time to time and that he was not in a position to tell the exact amount of loss suffered by Kenya Power. He said that the loss of units was 2,609.18 megawatt hours with the average price of 20.31 per megawatt, which information is reflected on page 19 of the Plaintiff’s bundle of documents. He said that Kshs. 52,992,394.85 did not take into account the cost of production and that what they computed were lost sales. 20. PW2 said that there could be power failure once every 2 months which is often attributed to many factors such as vandalism, tree under the lines, malfunction because of defective switches or where lines get cut for other reasons such as aging and corrosion which is a factor in Mombasa. That relays indication of where and what the fault is to zero in on the problem but it shows the general location of the fault. That the system is precise save for minor deviations. 21. PW2 said that the fault in this case was read to be 4.5 km from Kipevu but he did not know how many power lines traversed the plot. That paragraph 18 of his statement says that they patrolled Kipevu line 1 which is about 40 kms but the information is not in their bundle of document. That at paragraph 20 of his statement, he said the fault was between 4 and 5 km from the Kipevu station and that the distance is never precise. He said that he neither visited the scene nor had the documents in court. 22. PW3, Emmanuel Ochieng’ Ouma, a way leave officer working for Kenya Power in Mombasa adopted his statement dated 24th March 2023 as his evidence in chief. That at paragraph 6 of the statement, he referred to a way leave agreement which is at pages 1, 2, 3, 4 of the bundle of documents. He said that there were 4 transmission lines that ran on the property known as Kipevu 1, Kipevu 2, Kipevu 3, and Kipevu 4 which are on 3 towers. That Kipevu 1 and 2 are on a single tower each while Kipevu 3 and 4 are on one tower constructed in a vertical formation. That the way leave in question is on Kipevu 1. 23. On cross examination by Mr. Khagram, PW3 said that he had no personal knowledge of the incident. That the incident occurred in 2014 but he went to the site later in 2017 when he went to Mombasa. He said that the court would be able to see the impact of the incident today as the mark on the conductor is still visible. PW3 said that he did not testify in the suit that Ajit Singh filed against Kenya Power and that Kenya Power was held to have trespassed on the land. 24. He said that he looked at the way leave agreement and noted that the date was not indicated. That the boundary of the plot was also not indicated. That he looked at the drawing but the same did not indicate the number of the plot concerned. That the way leave agreement must show how it affects the land but the whole piece of the land has not been shown. That the land on which Kenya Power was held to have trespassed on was Kipevu 3 and 4, which lines were not in relation to the line in question. 25. PW3 further stated that at page 1 of the Defendant’s bundle of documents is a way leave request while the agreement is at page 2 which Ajit declined to give consent by signing the documents as shown at page 6. That they made another request as per the letter at page 8 which was also declined. That if there was a breach of the agreement, the person in breach was not Ajit. That breach was by the occupier which at the time was SPEDAG. That Kenya Power was on the land by means of the way leave agreement. That the agreement talks of the owner and not the occupier. That the map also does not have the exact positioning of Kipevu 1. 26. PW4, Janet Kwoma, a Senior Court Assistant attached at the criminal registry as the in charge appeared in court to produce the original Criminal Case file No. 1045 of 2014 as Exhibit PExh 10. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 4

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27. PW5, Philip Sang, the Investigation Officer at the DCI Headquarters attached at Kenya Power as an investigator adopted his statement dated 17th May 2017 as evidence in chief. He said that page 5 of the Plaintiff’s bundle of documents is a statement recorded from Mohamed Jadeja who was working for the Defendant. 28. On cross examination by Mr. Khagram, PW5 said that he was aware that Mr. Mohamed was charged with a criminal offence before the Chief Magistrates Court but he was not aware of the outcome. He said that paragraph 11 of his statement was incorrect as Mr. Abdulrahman did not say that the machine came into contact with the line. That paragraph 12 of his statement is also incorrect as Mr. Abdulrahman did not also say that there were sparks as a result of contact with the line. 29. PW5 further stated that at paragraph 17, he made reference to a quantified loss based on the information he was given but said he had no competence to confirm the quantification. He said he did not investigate why the power line took long to restore, that he did not see the sparks, that he relied on the statement given by witnesses, and that he was not aware that the line was restored after 3 hours as a protective measure. He said that he visited the scene and saw 4 lines but he did not establish whether the specific line was within the way leave. He said that he was not aware that Kenya power had trespassed on the property as he did not investigate on the same. That at paragraph 15, he said the damage was repaired, which information was based on what he was told but he did not confirm the position. 30. PW6, Benjamin Kilonzo Muya, a safety engineer at Kenya Power adopted his written statement dated 6th July 2023 as evidence in chief. He said that he prepared a report dated 29th August 2014 which he produced as PExh 11. On cross examination by Mr. Khagram, he said that the background in the report was based on information given by his colleagues and that the cause of the incident was a safety clearance breach. That the machine breached the safety limits and came into contact with the power line. That he visited the scene on 12th June 2014, which was 14 days after the incident and that sometimes investigations took place even after years. He said that he was not aware that KPLC was found to have trespassed. He said that if the court found that KPLC had trespassed, KPLC would have no claim against SPEDAG. 31. PW6 said that some of the information was given to him by the driver who said he saw a flash. He said that other reasons could cause the flash and that it was true the line was kept off for 3 hours as a safety measure to ascertain the fault and its cause. He said that the estimated loss was based on the information received. That when IPPs produce power and it is fed into the line, the process would stop if there was a fault. That the power is unspent but KPLC would have lost the opportunity to sell. He said that at paragraph 15 of his statement states that there was electrical contact but it did not mean physical contact, and that paragraph 17 was only an estimate. 32. Defence hearing was conducted on 13th June 2024 where the Defendant tendered their evidence. DWI, Joseph Otieno Seme, adopted his witness statement dated 13th October 2021 as his evidence in chief. He also produced the bundle of documents filed by the Defendant as per the list of documents dated 25th July 2017 as exhibits DExh A1 - A25. That the Defendant also filed a further list and bundle of documents dated 13th October 2021 which DW1 produced as exhibits DExh B1 and B2. 33. On cross examination, DW1 stated that an accident occurred on 26th May 2014 and that there was no employee of Kenya power at the scene on that day. That he was on duty and that he only realised there was a black out when he went home at 5.00 pm. He said that the machine he was using was KHM 676F and that the yard is only for loading and ofioading. He also said that there are 3 high voltage electric power lines passing over the yard. There was no re-examination and the defence case was marked as closed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 5

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34. The court then gave directions for parties to file their submission. The Plaintiff in their submissions dated 22nd July 2024 stated that the Defendant has challenged jurisdiction of this court to hear and determine the suit herein on the basis that the suit is premised on a wayleave agreement and therefore the court with proper jurisdiction is the Environment and Land Court. 35. The Plaintiff submitted that the case of Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another (2016) eKLR set the principles to guide the court in determining whether the matter falls within the jurisdiction of the Environment and Land Court of not. That the dispute between the Plaintiff and the Defendant herein is not about contract for sale or purchase of property but negligence and destruction of property belonging to the Plaintiff. That the claim is an ordinary claim for the tort of negligence that falls within the jurisdiction of this court. That this court therefore has jurisdiction to entertain this matter. 36. On whether the Defendant caused a trip of a conductor in the power line, the Plaintiff submitted that they entered into a Wayleave Agreement with Ajit Singh Bhogal to lay, alter, use, maintain, repair, renew, remove, and inspect an electric line either overhead or underground across Title Number CR. 18602 Plot No. 571 Section V Mainland North in Mikindani. 37. That the conductor of the Plaintiff’s electric line got damaged causing a blackout in Coast, Nairobi, Central Rift Regions, and Mount Kenya. That the Plaintiff’s witnesses gave evidence that the Trip Faulter was used to establish where the trip had occurred and it traced the location of the fault to the Defendant’s yard. That the tripped line was Rabai/Kipevu 132KV line 1 and that they explained how they located the fault area and narrowed it down to the tripped line. 38. The Plaintiff stated that PW5, Philip Sang, the Chief Inspector attached to the Plaintiff for security and investigations stated that on 26th May 2014, he visited the site of the incident where he found Abdulreman Ali Jadeja who admitted that a crane came into contact with the power line as a result of which there were flash sparks. The Plaintiff relied on the case of Stanley Mombo Amuti v Kenya AntiCorruption Commission (2019) eKLR which cited with authority the case of Elgin Finedays Ltd v Webb [1947] AD 744 and submitted that failure by the Defendant to call Mr. Abdulreman for cross examination, evidence of the Plaintiff to the effect that Abdulreman operated a crane and admitted to having damaged the conductors in the powerline remained unchallenged. 39. On whether the Plaintiff suffered damage/loss, the Plaintiff submitted that they produced evidence to show that due to damage to its powerline, they were unable to supply electricity to its customers amounting to 2,609,180 kilowatt hours. That the Plaintiff produced copies of its log sheets for 26th May 2014 indicating the Kilowatt Hours supplied on the said date vis a vis the comparative log sheets for 28th April 2014, 5th May 2014 and 19th May 2014. That PW5 explained to court how the amount of Kshs. 2,609,180 was arrived at by comparative analysis of the power supply on similar days of the week for the preceding 4 weeks. That the Plaintiff produced a statement of account clearly evidencing the financial loss suffered as a result of the Defendant’s negligence. 40. The Plaintiff submitted on whether there was contributory negligence on their part, that the law on contributory negligence is to apportion proximate cause and blameworthiness where appropriate. That the court in Blyth v Birmingham Waterworks Co. [1843 – 60] ALL ER defined negligence while the authors of Clark and Lindsell on Torts 18th Edition set out the requirements which the Defendant had to prove to establish contributory negligence on the part of the Plaintiff. 41. According to the Plaintiff, they erected the powerline on the property before the Defendant started operating the yard, that there was no evidence showing that the Plaintiff’s powerline was poorly erected and that the Defendant has not produced any consent form from Mr. Ajit or the Plaintiff indicating https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 6

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that they were allowed to operate a yard on the suit property. The Plaintiff relied on the holding in Amani Kazungu Karema v Jackmash Auto Ltd & another (2021) eKLR and added that for a party to be held liable for contributory negligence, it has to be established that the danger was foreseeable to the Plaintiff, which was not the case herein. 42. On the issue of whether the Plaintiff is entitled to the relief sought, the Plaintiff placed reliance on the case of Payzu v Sanders (1919) 2 KB 581 and Livingstone Joel Weche t/a Weche Transporters v Pz/Cussons East Africa Limited (2016) eKLR and submitted that the Plaintiff’s power line was reenergized in 3 hours which duration was reasonable and the Plaintiff took all steps necessary to ensure that the power line was reenergized in a short time. That PW2 in his witness statement dated 17th May 2017 demonstrated the computation used by the Plaintiff to reach the amount of Kshs. 52,992,394.84 claimed by the Plaintiff. That from the foregoing, the Plaintiff has proved its case to the required standard and is entitled to the remedies sought. 43. The Defendants filed submissions dated 14th August 2025. The Defendant relied on the holding in the case of Owners of the Motor Vessel Lillian ‘S’ v Caltex Kenya (1989) KLR 1 and submitted that this court lacks jurisdiction to hear and determine the matter. That the cause of action is premised on the Wayleave Agreement between Ajit Singh Bhogal and KPLC which erected power transmission lines alleged to have been damaged. 44. That KPLC alleges that it suffered loss as a result of the Defendant’s purported trespass into the way leave trace. That the cause of action arises out of the use of property. That the issue of enforceability also arises as the Defendant was neither a party to the agreement nor was the agreement registered against the subject property. That the damaged line was among two others that had been erected without consent of the land owner. 45. The Defendant submitted that the Environment and Land Court is the proper jurisdiction to hear and determine the matter herein. The Defendant argued that Part X (Section 143 to 149) of the Land Act 2012 and Section 98 (3) of the Land Registration Act which provides for the manner in which the wayleave and other rights are to be created and maintained. That Section 50 of the Land Act vests exclusive jurisdiction on the Environment and Land Court under the Environment and Land Court Act to hear and determine disputes, actions and proceedings concerning land under the Land Act. 46. The Defendant also pointed out that pursuant to Order 4 Rule 2 & 4 of the Civil Procedure Rules, the Plaint ought to have been accompanied by an affidavit verifying correctness of the averments contained in the plaint sworn by an officer of the company duly authorized under the seal of the company to do so. That the provision is set out in mandatory terms as set out in Spire Bank Limited v Land Registrar & 2 others (2019) eKLR, which authorization ought to be produced before commencement of the trial. 47. On enforceability of the Wayleave Agreement, the Defendant submitted that while the top page of the way leave agreement shows that the agreement was entered into between KPLC and Ajit Singh Bhogal, the main body of the agreement shows that it is the East African Power and Lighting Company Limited that actually entered into the agreement. That the alleged way leave agreement is undated and it is not clear where exactly the centerline of trace falls. The Defendant argued that under Sections 107 and 109 of the Evidence Act, the burden of proof lies on KPLC to show the existence of a valid Wayleave Agreement between itself and Ajit Singh Bhogal, that such agreement binds Spedag, and that the 132 KVA line, subject of this suit fell within the 15 feet wayleave trace. 48. That KPLC failed to discharge this burden of proof at trial. That Clause 1 (a) of the wayleave agreement refers to a red line on the sketch plan attached, while a copy of the agreement containing the sketch has no red line identification of the trace. That even if one were to assume the line on the diagram represents the centre line, the manuscript notes adjacent to the line referred to an underground line https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 7

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and not any 132 KV line overhead the line. That it was therefore incorrect for KPLC to allege that the wayleave trace was for the overhead 132 KV line. 49. The Defendant submitted that the wayleave terms do not restrict usage of the property as a yard and that no term to that effect could be read into the agreement by this court as it would amount to rewriting the contract. There is therefore no basis for the allegation by KPLC that Spedag trespassed onto its wayleave trace. That none of the Plaintiff’s witnesses identified the trace as well as show that Kipevu Line 1 fell within the trace. The Defendant submitted that KPLC failed to prove that it had a valid wayleave agreement that was enforceable against Spedag, a third party who was not party to the wayleave agreement. 50. The Defendant made reference to KPLC’s letter dated 26th October 2005 to the Electricity Regulatory Board on page 18 of the Defendant’s List and Bundle of documents in which KPLC stated that it required a 60 meter way leave trace along the existing line to install a further line. That at paragraph 2 of the letter, KPLC stated that Mr. Bhogal had allegedly encroached their way leave trace by extending his boundary wall to the existing 132 KVA line. That KPLC now alleges that the line that was allegedly breached had containers stashed under it when its own evidence shows that the breach by Ajit, if any, was the boundary wall built under the existing line. 51. The Defendant submitted on whether Spedag was negligent in its conduct or trespassed onto the wayleave and whether KPLC suffered any loss or damage, by citing the case of Ricks v Cheb & another [2025] KEELC 4247 (KLR) where the Environment and Land Court considered the elements required to establish a claim in trespass. The Defendant submitted that having failed to establish its wayleave trace by adducing tangible evidence of a properly identifiable plan that meets the legal threshold or through a surveyor’s report to show the exact position of the affected line, KPLC’s claim for trespass as a cause of action is untenable. That what constitutes trespass was further elaborated by the Court of Appeal in Doshi v Chemutut & 7 others [2025] KECA 776 (KLR). 52. On the issue of negligence, the Defendant argued that KPLC was required to prove that Spedag owed a duty of care which was breached and that KPLC suffered loss as a result of the breach. That none of the Plaintiff’s witnesses demonstrated the alleged negligent acts by Spedag. The Defendant relied on the holding in Kihungi & another v Iberia Airlines of Spain SA [1991] KLR 1 and maintained that evidence of the witnesses was based on information received from 3rd parties. 53. The Defendant stated that the Magistrate’s Court in its judgment found that in the absence of any evidence of damage, the question of who caused it was irrelevant. That the decision has neither been appealed or set aside and that under Section 44 of the Evidence Act, the decision is binding upon the Plaintiff. That proof of causation is critical to the success of actions in tort except in instances where the doctrine of res ipsa loquitor is applicable. That the doctrine has neither been pleaded nor is being relied upon by KPLC. 54. On the awardable damages, the Defendant contended that no damages ought to be awarded to the Plaintiff as it has not only failed to prove negligence against the Defendant to the required standard but it has failed to show a link between the damage caused and loss sustained. That according to the evidence of PW2, Charles Eric Maloba, it was not only subjective to sample the data of just three Mondays to justify about 21,400 units generated and consumed but it was fallacious to suggest that the Plaintiff had suffered a loss of 2,609 MWH when his evidence shows that the differential 3,272 MWH odd units were never generated on the material day and were not available for sale regardless of whether the incident occurred or not. 55. The Defendant additionally stated that according to PW6, the Plaintiff’s claim is based on unverified unit costs and sales data for the previous Monday without taking into account several other factors that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 8

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could affect the system. That it was therefore impossible to ascertain whether the amount claimed was overstated or understated. The Defendant submitted that damages for loss of business opportunity are special damages intended to restore a party to the position he would have been in save for the act complained of. That special damages must not only be pleaded with particularity but they must be strictly proved. Analysis 56. This court has considered the pleadings, evidence on record and submissions by the parties. The issues for determination are: a. Whether this court has jurisdiction to hear and determine the matter herein b. Whether failure to comply with Order 9 Rule 2 (c) of the Civil Procedure Rules is fatal to the case c. Whether the Wayleave Agreement can be enforced against the Defendant who was not a party to it d. Whether the Defendant was negligent leading to damage of a conductor in the Plaintiff’s line e. Whether the Plaintiff suffered damage/loss and entitled to reliefs sought 57. On the issue of jurisdiction, the Defendant challenged jurisdiction of this court contending that the claim herein concerns damage allegedly sustained by the Plaintiff in purported breach of the wayleave agreement and trespass to land, matters falling within the mandate of the Environment and Land Court under Article 162(2)(b) of the Constitution. 58. The court in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) had the following to say on the issue of jurisdiction: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 59. From the pleadings, the Plaintiff’s claim is grounded in the tort of negligence arising from alleged damage to its 132 KV transmission line and resultant economic loss. The Plaintiff does not seek determination of title, ownership, occupation, or use of land. The wayleave agreement was pleaded merely to demonstrate lawful installation of the line. 60. The Court of Appeal in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR) held that jurisdiction depends on the predominant issue in dispute. Where the substance of the claim is contractual or tortious and not land ownership or use, the High Court retains jurisdiction. Accordingly, this Court finds that the dispute is one of negligence and recovery of special damages, and therefore properly within its jurisdiction. 61. On the issue of the Plaintiff’s failure to comply with Order 9 Rule 2 (c) of the Civil Procedure Rules, the Defendant argued that the suit is incompetent as the Plaint ought to have been accompanied by a verifying affidavit sworn by an officer of the company duly authorized under the seal of the company to do so, which authorization ought to have been produced before commencement of the trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 9

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62. Order 9 Rule 2 (c) of the Civil Procedure Rules provides: The recognized agents of parties by whom such appearances, applications and acts may be made or done are: (c) 63. in respect of a corporation, an officer of the corporation duly authorized under the corporate seal. Failure to file a resolution at inception is not fatal, provided authority exists and can be demonstrated subsequently. In Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd [2000] KEHC 159 (KLR), the Court held that: “ … but proceedings started without proper authority may subsequently be ratified. Danish Mercantile vs. Dearmont 1951 1 All E.R. page 925 is cited as authority for that last proposition. It is an English Court of Appeal decision which fully supports the statement in Halsbury. It is urged on me that whether the suit has been properly instituted is a triable issue. As it seems that even if that is so, the matter can be rectified in short order. I do not consider that it is such an issue.” 64. Further, Article 159(2)(d) of the Constitution obliges courts to administer justice without undue regard to procedural technicalities. The verifying affidavit herein was sworn by an officer of the Plaintiff company. No prejudice was demonstrated. The omission, if any, is curable and does not go into the substance of the matter. The Court therefore finds that non-compliance with Order 9 Rule 2(c) is not fatal to the suit. 65. On whether the Wayleave Agreement can be enforced against the Defendant who was not a party to it, the Defendant was not a party to the wayleave agreement. Under the doctrine of privity of contract, a contract cannot impose obligations upon a non-party. In Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985] KECA 58 (KLR), the Court of Appeal affirmed that only parties to a contract can sue or be sued upon it as follows: “ As it stated in Halsbury’s Laws of England, 3rd Edition, Volume 8 at paragraph 110: “As a general rule a contract affects only the parties to it, and cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.” 66. The Court therefore agrees that the wayleave agreement cannot be enforced against the Defendant as a contractual instrument. However, the Plaintiff’s claim is not one for breach of contract but for negligence. The agreement was adduced to establish lawful erection and maintenance of the line. The Defendant’s liability arises independently in tort. Accordingly, the inability to enforce the contract against the Defendant does not defeat the negligence claim. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 10

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67. On whether the Defendant was negligent leading to damage of a conductor in the Plaintiff’s line, the Plaintiff in establishing negligence must prove duty, breach, causation, and damage, as articulated in Blyth v Birmingham Waterworks Co. [1843 – 60] ALL ER 478 that: “ Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.” 68. Operators of cranes and heavy machinery owe a duty to avoid foreseeable harm to overhead highvoltage lines. The risk of electrocution or conductor damage is obvious and foreseeable. Evidence before the Court shows that a trip fault occurred on 26th May 2014, fault tracing technology narrowed the location to the Defendant’s yard and a crane in operation came into contact with the conductor causing sparks. The Defendant failed to call the crane operator to rebut these allegations. The Court draws an adverse inference from the failure to call a material witness. 69. The Defendant relied on a criminal acquittal. However, as held in Koinange & 13 others v Charles Karuga Koinange [1986] KEHC 3 (KLR), the standard of proof in civil cases is on a balance of probabilities and is distinct from criminal proceedings. The court stated as follows: In arriving at my decision in this respect I have relied upon the principle enunciated in Ratilal Patel v Lalji Makanji [1957] EAR 314-317: “There is one observation which we must make – burden of proof–– standard of proof required – allegations of fraud must be strictly proved, although that standard of proof my not be so heavy as to require proof beyond reasonable doubt. Something more than a balance of probabilities is required. 70. It cannot be ignored that the property owner, Mt. Ajit Bhogal had lodged a complaint with the Plaintiff that their additional overhead lines were trespassing on his property and which was outside the Wayleave Agreement. The risks imposed on the additional lines were communicated to the Plaintiff but no action was taken. It cannot be ascertained that a safe distance was maintained as far as the overhead lines subject to this suit are concerned. 71. Further, none of the Plaintiff’s witnesses witnessed the commission of the alleged negligent act. He who alleges must proof. It was the duty of the Plaintiff to proof that the Defendant was negligent in causing the power failure. On a balance of probabilities, the Court finds that the has failed to proof that the Defendant breached its duty of care and caused damage to the Plaintiff’s conductor. 72. On whether the Plaintiff suffered damage/loss and entitled to reliefs sought, having failed to proof negligence on the part of the Defendant, the claim for special damages fails. 73. On costs, I consider that this is a fairly old matter. Litigation must come to an end. This court exercises its discretion and orders that each party to bear its own costs. Determination 74. Under the circumstances, this court orders as follows; a. This court has jurisdiction to hear and determine the matter. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 11

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b. The suit lacks merits and is hereby dismissed. c. Each party to bear their own costs. DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF FEBRUARY, 2026 ……………………….. HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: Ms. Lelu Advocate for the Plaintiff Mr. Ondego Advocate for the Defendant Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4332/eng@2026-02-19 12

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