Kenya Power & Lighting Company v Chonge (Environment and Land Appeal 2 of 2023) [2024] KEELC 418 (KLR)
The bottom line
#Kenya Power lost its appeal and must pay a landowner KShs 400,000 plus costs for entering his land and erecting power poles without consent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Court had jurisdiction to deal with the dispute
- 2.Depending on (i) above, whether the trial court's assessment of evidence and resultant award of damages was proper
- 3.Costs of the suit
Key legal issues
#Whether the trial court had jurisdiction notwithstanding the Energy Act's dispute-resolution framework
The trial court had jurisdiction because trespass is an illegality outside the regulated activities under the Energy Act, and the Respondent's right of access to justice could not be defeated by the doctrine of exhaustion
The court examined Sections 9, 10, 11, 25, 36 and 170 of the Energy Act establishing the Authority and Tribunal and their jurisdiction. It held that the Regulations define a complaint as dissatisfaction with a service or practice of a licensee under the Act. Trespass and cutting trees are illegal acts bordering on criminal liability, not regulated practices, so they fall to the court. Further, the plaintiff had an access-to-justice right that exhaustion doctrine could not bar.
Whether the jurisdiction ground of appeal was res judicata given the dismissed preliminary objection
Although the ground would ordinarily be res judicata since the Appellant did not appeal the ruling dismissing its preliminary objection, the court entertained it because jurisdiction may be raised at any stage
The trial court had dismissed the Appellant's preliminary objection on jurisdiction on 08/02/2022 and no appeal was filed. The court initially found the ground an afterthought and a second bite at the cherry. However, since superior courts have held that jurisdiction can be raised at any stage including on appeal, the court dismissed the res judicata submission and considered the question on its merits.
Whether the trial court's assessment of evidence on trespass and consent was proper
Yes - the Appellant's own witness admitted no consent was sought, and the trial court correctly considered that evidence
The Appellant's sole witness, Luka Kibet Kigen, testified he had no authority to enter the plaintiff's land and did not ask for consent to erect a pole. The trial court, applying Section 171 of the Energy Act requiring landowner consent, found trespass. The first appellate court held this was a correct finding of fact and that the evidence of the Appellant's witness was duly taken into account.
Whether the awards of general damages of Kshs. 400,000 and special damages of Kshs. 51,250 were proper
Yes - although the trial court cited no authorities, there was no demonstrated misdirection; loss of user was pleaded and special damages were specifically pleaded and proved
Guided by the principles in Kiambu Dairy Farmers and the Ringera decision, the court held that absence of supporting authorities alone does not justify interference where no misdirection is shown. Loss of user was pleaded (inability to sell or develop the land). On special damages, the Appellant did not challenge the Kenya Forest Service valuation report, and the Respondent pleaded and specifically proved his loss.
Legal principles established
#- Trespass on land is not an activity, practice or service regulated under the Energy Act, and a claim of trespass properly lies before the court rather than the Energy and Petroleum Regulatory Authority or Tribunal
- An issue of jurisdiction may be raised at any stage of proceedings, even on appeal
- An appellate court will not interfere with a discretionary award of damages absent misdirection in law, misapprehension of facts, or an entirely erroneous estimate
Court orders
#- 1.The Appeal is dismissed in entirety
- 2.Costs of the appeal to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial Court (magistrates' court)
- null
- Jurisdiction invoked
- First appeal to the Environment and Land Court against a magistrates' court judgment (Energy Act, Fair Administrative Actions Act and Constitution provisions raised in submissions)
Relief refused
#Appeal seeking setting aside of the entire judgment of the lower court
The Appellant demonstrated no misdirection in law or misapprehension of facts; the trial court correctly found trespass and properly assessed damages
Costs
Appeal dismissed with costs to the Respondent
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, I find and do hereby hold that the Appeal is unsuccessful and I hereby dismiss it in entirety with costs to the Respondent.
It is so Ordered.
Therefore, the Respondents was right in moving the Court as he did and the Court had jurisdiction to deal with the matter.
In my view that would not accord the Authority jurisdiction to handle. He can only move the proper forum that deals with determinations on illegalities, and that is the Court
Interference with exercise of judicial discretion only arises where there is clear demonstration of misdirection in law, misapprehension of the facts, taking into consideration factors the trial court ought not to have taken into consideration
Trespass is a violation of the right to possession and a plaintifi must prove that he has the right to immediate and exclusive possession of the land which is difierent from ownership.
Issues in the judgment
#The trial court awarded special damages of Kshs. 51,120/- in the background recital, but the memorandum of appeal and the court's analysis refer to an award of Kshs. 51,250/-
The trial court's judgment is quoted with what appear to be paragraph numbers (e.g. '24.', '25.') not corresponding to the appeal record, and the quoted Ringera extract contains internal numbering ('53.') and typographical errors
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company v Chonge (Environment and Land Appeal 2 of 2023) [2024] KEELC 418 (KLR)", Case Analysis (2024). Appeal from Kimilili PMCC (Plaint dated 22/04/2021, Memorandum of Appeal dated 02/02/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/418/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.