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Court of AppealPartially AllowedSecond appeal from Nyahururu PMCC No. 70 of 2008, arising from Nyahururu ELCA No. 24 of 2017 (formerly Nakuru HCCA No. 263 of 2010)

Ng'ang'a v Kenya Power & Lighting Company (Civil Appeal E012 of 2021) [2026] KECA 648 (KLR)

Court of Appeal
25 March 2026
2,672 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated a Kshs 200,000 award against Kenya Power for trespass, confirming landowners don't need to prove specific damage to be compensated.

What this practically means

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Executive summary

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This is a second appeal against the judgment of the Environment and Land Court at Nyahururu dated 18th January 2018, which had set aside the trial Magistrate's award of Kshs. 200,000.00 in general damages for trespass, leaving only Kshs. 13,700.00 in special damages. The dispute concerned the respondent's erection of an electricity post and supply lines on the appellant's parcel Muhotetu/Melwa/1888 without consent, damaging trees, a barbed wire fence and posts. The Court of Appeal, per Warsame, Mativo and Gachoka, JJ.A, held that the ELC Judge misapprehended the evidence: the Magistrate's reference to 'posts' rather than a single post was mere semantics going to no root of the dispute, since the respondent never denied erecting the post without consent, an act amounting to trespass actionable per se. The Court found no legal basis for the Judge's analysis premised on mesne profits, as the trial court had categorically awarded general damages. Applying Wanyeki v Bhudiya, Kenya Pipeline v Ndegwa and Ken Odondi v Omburah, the Court held the trial court's award rested on correct principles and declined to disturb it. It also rejected the respondent's objection that the memorandum of appeal failed section 72(1) of the Civil Procedure Act, reiterating that its jurisdiction derives from the Appellate Jurisdiction Act and the Court of Appeal Rules. The Court allowed the appeal, set aside the ELC judgment, reinstated the trial court judgment in its entirety, and awarded the appellant the costs of the appeal and the ELC.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge arrived at a correct or incorrect finding in setting aside the findings of the learned Magistrate by disallowing the award of Kshs. 200,000.00 as general damages for trespass
  2. 2.Whether the memorandum of appeal failed to raise issues of law as required by section 72(1) of the Civil Procedure Act
  3. 3.Who bears the costs of the suit and the two appeals

Key legal issues

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01

Whether the ELC Judge was entitled to set aside the general damages award of Kshs. 200,000.00

Holding

The Judge erred: the reference by the Magistrate to 'posts' rather than one post was mere semantics, and the award of general damages for trespass was justified since the trespass (erection of the post without consent) was proved and undisputed.

Reasoning

The respondent never denied erecting the post on the appellant's land without consent, which constituted trespass actionable per se. The ELC Judge's criticism of the Magistrate's use of the word 'posts' did not go to the root of the dispute and could not justify interfering with the award. The Court found the ELC misapprehended the evidence and reached an erroneous decision, warranting reinstatement of the trial court's judgment.

p. 4
02

Whether the trial court's award could be characterised as mesne profits requiring proof of quantum

Holding

No. The trial court categorically awarded general damages; the ELC Judge erred in treating the award as mesne profits and in requiring evidence of mesne profits.

Reasoning

The ELC Judge had held that no evidence was adduced on the quantum of mesne profits or the economic activity on the land, and struck out the award on that basis. The Court of Appeal held there was no legal or justifiable basis for the mesne profits analysis because the trial court had expressly awarded general damages for trespass, for which proof of specific loss is unnecessary once trespass is established.

p. 4
03

Whether the appeal failed for want of issues of law under section 72(1) of the Civil Procedure Act

Holding

The objection failed because this Court derives its jurisdiction from the Appellate Jurisdiction Act and the Court of Appeal Rules, not the Civil Procedure Act.

Reasoning

The respondent argued the memorandum of appeal did not satisfy section 72(1) of the Civil Procedure Act. The Court rejected this, reiterating that it is not bound by the Civil Procedure Act and its Rules, and that its jurisdiction flows from the Appellate Jurisdiction Act and the Court of Appeal Rules. It also found the appeal merited on the substance, the ELC having misapprehended the evidence.

p. 5

Legal principles established

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  • In a second appeal, the Court of Appeal's scope is limited to matters of law unless the lower courts considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • Trespass to land is actionable per se; once trespass is proved, the claimant need not prove specific damage or loss to be awarded damages.
  • An appellate court will not ordinarily interfere with a trial court's award of damages merely because it would have awarded different damages.
  • The Court of Appeal's appellate jurisdiction is derived from the Appellate Jurisdiction Act and the Court of Appeal Rules, not from the Civil Procedure Act; a ground premised on section 72(1) of the Civil Procedure Act must be rejected.

Court orders

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  1. 1.Set aside the decision of the ELC dated 18th January 2018
  2. 2.Substitute the same with the judgment of the trial court (dated 27th July 2020 as stated in the orders; elsewhere stated as 27th February 2010)
  3. 3.Reinstate the trial court judgment in its entirety
  4. 4.Appellant to have the costs of this appeal and the costs in the ELC

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
Environment and Land Court, Nyahururu
Nyahururu ELCA No. 24 of 2017 (formerly Nakuru HCCA No. 263 of 2010)
Jurisdiction invoked
Second appeal limited to matters of law under the Appellate Jurisdiction Act and the Court of Appeal Rules; the Court states it 'is not bound by the dictates of the Civil Procedure Act and the Rules thereunder. This Court derives its jurisdiction from the Appellate Jurisdiction Act and the Court of Appeal Rules.'

Relief refused

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Respondent's prayer for dismissal of the appeal under section 72(1) of the Civil Procedure Act

The Court held that its jurisdiction derives from the Appellate Jurisdiction Act and the Court of Appeal Rules, not the Civil Procedure Act

p. 5

Costs

The appellant shall have the costs in this appeal and those in the ELC. No order was made as to the costs of the suit at trial.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We hereby set aside the decision of the ELC dated 18th January 2018 and substitute the same with the judgment of the trial court dated 27th July 2020. For avoidance of doubt, trial court judgment dated 27th July 2020 is hereby reinstated in its entirety. We order further that the appellant shall have the costs in this appeal and those in the ELC.
p. 5Final orders - reinstatement of trial judgment and costs
It is trite law that trespass to land is actionable per se. Once it is proved the appellant is under no duty to prove that he sufiered any specific damage or loss.
p. 5Trespass actionable per se
While indeed the learned Magistrate made reference to posts, we do not think that would be a basis for setting aside general damages for trespass. Those are semantics that do not go to the root of the dispute.
p. 4Interference with damages awards - semantics not a basis
this court will not ordinarily interfere with the findings of a trial Judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages difierent from the award of the trial Judge.
p. 5Non-interference with trial court damages awards
our scope is limited to determining matters of law, unless it is shown that the courts below considered matters they should not have considered, failed to consider matters they should have considered, or that, in looking at the entire decision, it is perverse.
p. 1Scope of a second appeal
This Court derives its jurisdiction from the Appellate Jurisdiction Act and the Court of Appeal Rules.
p. 5Source of the Court of Appeal's appellate jurisdiction

Issues in the judgment

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material

Internal contradiction in the date of the trial court judgment: earlier described as dated 27th February 2010, but the final orders refer to a trial court judgment dated 27th July 2020.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ng'ang'a v Kenya Power & Lighting Company (Civil Appeal E012 of 2021) [2026] KECA 648 (KLR)", Case Analysis (2026). Second appeal from Nyahururu PMCC No. 70 of 2008, arising from Nyahururu ELCA No. 24 of 2017 (formerly Nakuru HCCA No. 263 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/648/eng@2026-03-25

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