Kenya Power & Lighting Ltd v Bhogal (Civil Appeal E017 of 2021) [2024] KECA 179 (KLR)
The bottom line
#The Court of Appeal threw out a Kshs. 20 million award against Kenya Power because the landowner never formally produced the key survey report as evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court may inquire into the jurisdiction of the trial court at this stage, and whether the trial court had jurisdiction to entertain the matter
- 2.Whether the report dated 19th March 2019 was a joint report, and whether it was produced in evidence
- 3.Whether the award of general damages of Kshs. 20,000,000/= was manifestly excessive
Key legal issues
#Whether the jurisdictional challenge could be raised for the first time on appeal and whether the ELC had jurisdiction
The jurisdictional issue was properly taken before the Court notwithstanding it was not raised below; however, the ELC was not deprived of jurisdiction because the alternative remedies under the Energy Act were neither adequate nor effective for the respondent's grievances, including alleged violation of Article 40 of the Constitution.
The Court traced the exhaustion doctrine through Muthinja, the NGOs Co-ordination Board Case and the Abidha Nicholus Case, noting that alternative remedies must be available, effective and sufficient. Relying on the Supreme Court's holding in Abidha Nicholus that the Energy Act does not expressly oust the ELC's jurisdiction, and that where Article 40 violations are in issue the ELC is the proper forum, the Court found the claim was not presented in the wrong forum and dismissed that ground.
Whether the survey report dated 19th March 2019 was a joint report properly produced in evidence
It was error for the trial Judge to treat the report as a joint survey report: it was signed only by the respondent's surveyor, referred to Ketraco instead of the appellant, was never produced as an exhibit, and there was no express order setting aside the earlier consent order.
The consent order of 21st September 2012 required a joint survey report agreed by the parties; the parties never agreed. Under Kenneth Nyaga Mwige, a document becomes evidence only when tendered and admitted as an exhibit and proved. The record did not show the report was admitted. Without it, the exact position of the lines and the portions of land affected were unestablished, leaving only mutually disputed allegations, which by section 3 of the Evidence Act were not proved.
Whether the award of Kshs. 20,000,000 as nominal damages was manifestly excessive
Having found the special damages claim unproved, the Judge could not award a substantial sum as nominal damages without evidential basis; nominal damages must be of no existence in quantity, a mere peg on which to hang costs.
Applying Kanji Naran Patel and Jogoo Kimakia Bus Services, the Court held nominal damages are not an arbitrary figure plucked from the air nor a percentage of an unproved claim. The award of Kshs. 20,000,000 was substantial and unjustifiable in the distinct lack of evidence on the ground. This issue was, however, no longer strictly necessary given the Court's finding on the survey report.
Legal principles established
#- A jurisdictional issue may be raised at any stage of the proceedings, including for the first time on appeal, and if a court lacks jurisdiction its proceedings and orders are a nullity.
- Where a dispute resolution mechanism exists outside the courts, it must be exhausted before the jurisdiction of the courts is invoked, subject to the requirement that the alternative remedy be available, effective and sufficient.
- The ELC retains original jurisdiction over matters handled by statutory bodies such as EPRA unless that jurisdiction is expressly and constitutionally ousted; where constitutional violations under Article 40 are alleged, the alternative mechanism is not adequate or effective.
- A document that is neither tendered nor formally produced and proved as an exhibit is not part of the judicial record and cannot be relied upon as evidence; a survey report signed by only one party, without an express court order varying a consent order, cannot be treated as a joint report.
- Nominal damages are a sum of no existence in point of quantity, a mere peg on which to hang costs; they are not a percentage of an unproved claim and must not be a substantial sum without evidential basis.
Court orders
#- 1.Appeal allowed
- 2.Judgment of Yano, J. dated 23rd November 2020 in Mombasa ELC Case No. 276 of 2006 set aside in its entirety
- 3.Respondent's suit against the appellant dismissed with costs to the appellant
- 4.Costs of the appeal awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 276 of 2006
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Environment and Land Court; Article 162(2) of the Constitution and the Environment and Land Court Act were central to the jurisdictional challenge.
Relief refused
#Respondent's claim for Kshs. 300,000,000 as special damages/compensation
Neither pleaded nor proved; the trial court had correctly declined it
Exemplary and aggravated damages
No evidence of malice or arrogance was established
Permanent injunction restraining the appellant from the suit land
Impractical as the power line serves the coastal region; parties were directed to negotiate a wayleave agreement
Costs
The respondent's suit dismissed with costs to the appellant; costs of the appeal also awarded to the appellant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises, we hereby allow this appeal, set aside the judgement of Yano, J. dated 23rd November 2020 in Mombasa ELC Case No 276 of 2006 in its entirety.
We hereby substitute therefor an order dismissing the respondent’s suit against the appellant with costs to the appellant. We also award the costs of this appeal to the appellant.
If admitted into evidence and not formally produced and proved, the document would be hearsay, untested and unauthenticated account.
We hasten to add that nominal damages are not a percentage of what was claimed but not proved.
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked.
the reliefs under the alternative mechanism were neither adequate nor efiective for the purposes of addressing not only the respondent’s grievances, but also the reliefs sought
Issues in the judgment
#The judgment gives inconsistent dates for the joint survey report - in places 19th March 2019, elsewhere 19th March 2018/2017 and 19th March 2017, and the filing date as 26th March 2018.
The names of the parties are not fully set out in the judgment; the respondent is identified only by reference to ownership of Plot No. 571, Section V M.N. Mombasa.
The judgment inconsistently states the quantum of the affected portion, describing it as about 60000 square feet (1.5 acres) in one passage and about 3.5 acres in another.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Power & Lighting Company Plc v Gatonye & another (Environment and Land Appeal E106 of 2025) [2026] KEELC 1765 (KLR)[2026] KEELC 1765 (KLR)25 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Ltd v Bhogal (Civil Appeal E017 of 2021) [2024] KECA 179 (KLR)", Case Analysis (2024). Court of Appeal appeal from Mombasa ELC Case No. 276 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/179/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.