Kenya Electricity Transmission Co Ltd (KETRACO) v Obonyo & another (Environment and Land Appeal E100 of 2025) [2026] KEELC 5353 (KLR)
The bottom line
#Kenya's land court threw out a Kshs. 10 million award against KETRACO because landowners failed to prove the company actually owned or maintained the power line on their land.
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 hear and determine the suit
- 2.whether the Respondents proved, on a balance of probabilities, that the Appellant was liable to them in trespass
- 3.whether the trial court erred in relying on documents that were not admitted in evidence
- 4.whether the awards of damages were merited, and whether they ought to be enhanced as urged in the cross-appeal
- 5.who bears the costs
Key legal issues
#Jurisdiction of the trial court over a trespass claim involving electricity infrastructure
The claim as pleaded was one in trespass to land, within the ELC/magistrates' jurisdiction under Article 162(2)(b) and section 13 of the Environment and Land Court Act; the Energy Act regime does not oust it, especially as the cause of action predates the 2019 Act.
The touchstone is the nature of the claim as pleaded: unlawful entry, erection and retention of structures and deprivation of use is a claim in trespass relating to use and occupation of land. The Energy Act 2019 is prospective and cannot retrospectively oust a jurisdiction properly seised of a 2016 claim. Moreover, the Appellant's own defence that it owns no undertaking on the land sits uneasily with a regulatory regime for complaints against licensees.
Liability in trespass of a company not in existence when the line was erected
Non-existence in 1983 is not a complete answer since a continuing trespass gives rise to fresh causes of action; but the Respondents failed to prove the Appellant presently owns, controls or maintains the line, so liability was not established.
A non-existent company cannot incur liability for the original entry, but a party may adopt and continue a trespass by keeping or maintaining the structure. Proof of present control or responsibility is therefore required. PW1 made no inquiries and had no evidence of ownership; PW2's assertion that KETRACO maintains the lines was admittedly unsupported; DW1's unshaken evidence was that KPLC constructed and still manages the lines and transferred no assets.
Whether designation as System Operator under section 138 of the Energy Act and Gazette Notice No. 155 of 2022 made the Appellant owner of the pre-2008 grid
No. System operation is a co-ordination function, not proprietary ownership; no doctrine of informal inheritance exists; a 2022 designation cannot vest ownership of infrastructure erected in 1983/1993; and the finding reversed the burden of proof.
Section 138(9) prohibits the system operator from trading in energy, showing the role is managerial. Ownership of State Corporation assets passes only under the State Corporations Act and vesting provisions; none was proved. The temporal problem is insuperable: the Respondents' own argument that the 2019 Act cannot reach back to 1983 defeats using the same statute to found liability from 1983.
Reliance on documents not admitted in evidence
The trial court relied on photographs, maps and valuation material it had expressly excluded and on passages transposed from the superseded ex parte record; this was a material misdirection vitiating the findings on trespass.
Documents marked PMFI 7 and PMFI 8 were never formally produced. The judgment nonetheless recorded that the plaintiffs produced pictures and maps, reproducing findings from the recalled ex parte proceedings and passages from Ajit Bhogal unsupported by the evidence. A judgment must rest on evidence admitted at the trial actually held.
Quantum and the cross-appeal for enhancement
The award of Kshs. 10,000,000/= had no evidential foundation: unexplained rate, contradictory multiplier, no anchor for the 1.5 acres finding, no apportionment between two plaintiffs, and risk of double compensation. The cross-appeal failed for want of admissible market-value evidence.
Under Kemfro and Butt v Khan an appellate court interferes where the award rests on wrong principles or is an entirely erroneous estimate. Here the valuation report was never produced, the Kshs. 238,000/= rate is unexplained, the 42-year multiplier contradicts the judgment's own recitals, and a global award in favour of 'the plaintiff' in the singular renders the decree uncertain. Enhancement would substitute one unsupported figure for another.
Legal principles established
#- System operation and ownership are distinct legal concepts; designation as System Operator does not convey proprietary interest in transmission assets
- There is no doctrine of 'informal inheritance' of assets or liabilities known to Kenyan law; assets of one legal person pass to another only by statutory vesting, transfer order, or conveyance/assignment
- A party who did not make the original entry may become liable for continuing trespass if it adopts and continues the trespass by keeping, controlling or maintaining the structure
- A document marked for identification (MFI) does not become evidence and no reliance may be placed on its contents unless formally produced and admitted
- Where a plaintiff sues the wrong party, the proper course is to dismiss the claim rather than strain the evidence to fasten liability on the defendant before the court
- The presence of energy infrastructure on land does not, without more, transmute a claim in trespass into a regulatory complaint within the Energy Act dispute-resolution regime
- The Energy Act, 2019 is prima facie prospective and cannot be applied retrospectively to a cause of action accrued before its enactment
Court orders
#- 1.The Appeal is allowed; the Judgment and Decree of Hon. B. Ireri, SPM delivered on 30th October 2025 are set aside and substituted with an order dismissing the Respondents' suit against the Appellant
- 2.The Cross-Appeal dated 26th June 2026 is dismissed
- 3.Each party shall bear its own costs of the Appeal, the Cross-Appeal and of the proceedings before the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu
- MCELC Case No. E257 of 2024 (formerly CMELC No. 257 of 2018)
- Jurisdiction invoked
- First appeal to the Environment and Land Court under section 26 of the Environment and Land Court Act as read with section 9 of the Magistrates' Courts Act
Relief refused
#Enhancement of damages sought in the cross-appeal to reflect market value of land
No admissible evidence of market value was before the court; enhancement cannot be made in an evidential vacuum
Permanent injunction and removal of power lines (sought at trial)
Trial court declined these reliefs; on appeal the entire suit was dismissed for failure to prove liability
Costs
Each party shall bear its own costs of the Appeal, the Cross-Appeal and of the proceedings before the trial court.
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.
The Appeal is hereby allowed. The Judgment and Decree of Hon. B. Ireri, SPM (as he then was) delivered on 30th October 2025 in Kisumu Chief Magistrate's Court MCELC Case No. E257 of 2024 (formerly CMELC No. 257 of 2018) are hereby set aside and substituted with an order dismissing the Respondents' suit against the Appellant.
The Cross-Appeal dated 26th June 2026 is hereby dismissed.
Each party shall bear its own costs of the Appeal, the Cross-Appeal and of the proceedings before the trial court.
A supposition is not proof, and a court cannot both discount evidence for want of foundation and rely upon it as the foundation of liability.
there is no doctrine of “informal inheritance” of assets or liabilities known to our law.
Where a plaintiff sues the wrong party, the proper course is not to strain the evidence to fasten liability upon the defendant who happens to be before the court, but to dismiss the claim, leaving the plaintiff to pursue the proper party.
The presence of energy infrastructure on the land does not, without more, transmute a claim in trespass into a regulatory complaint.
Issues in the judgment
#The trial court judgment bears two dates: the memorandum of appeal describes it as dated 14th November 2025 but delivered 30th October 2025; the court itself noted the anomaly
The trial court case number is given inconsistently: the record initially refers to CMELC No. 257 of 2018, while the final orders cite MCELC Case No. E257 of 2024 (formerly CMELC No. 257 of 2018)
The cross-appeal is dated 26th June 2026, which appears chronologically irregular relative to an appeal in ELCA No. E100 of 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Electricity Transmission Co Ltd (KETRACO) v Obonyo & another (Environment and Land Appeal E100 of 2025) [2026] KEELC 5353 (KLR)", Case Analysis (2026). ELCA No. E100 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5353/eng@2026-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.