Kenya Power & Lighting Company PLC v Vitalis Ouma Osano
The bottom line
#Kenya Power lost its appeal and must pay a landowner over Kshs. 22 million for running power lines across his land without consent or compensation.
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 Tribunal erred in finding that the Appellant had trespassed, and continues to trespass, upon the suit property
- 2.Whether the Tribunal erred in awarding the Respondent special damages of Kshs. 21,822,713/=
- 3.Whether the Tribunal erred in awarding the Respondent general damages of Kshs. 500,000/= for continuing trespass
- 4.Whether the Tribunal erred in admitting and relying upon the Respondent's photographic exhibits
- 5.What orders ought to issue as to interest and costs
Key legal issues
#Whether the Appellant trespassed on the suit property
Trespass established; the three electricity lines traverse the registered land without consent, wayleave or compensation, and entry in 2018/2019 was unlawful
Proprietorship was unchallenged and indefeasible under sections 24-26 of the Land Registration Act. The Appellant's own surveyor relied on general boundaries, its Wayleaves Officer admitted three lines were on the property, and the Tribunal saw the lines criss-crossing the land on a site visit. No approval identified the parcel, no registered instrument existed, section 28 protects only lawful placements, and the 2018/2019 works violated section 171(1) of the Energy Act requiring prior owner consent.
Whether the special damages award of Kshs. 21,822,713/= was justified
Award affirmed; trees valuations unchallenged and supported by the Forest Officer's reports, and the valuation of sterilised land was never challenged in cross-examination nor met by any counter-valuation
Special damages must be specifically pleaded and strictly proved with as much particularity as circumstances permit. The Forest Officer's two written reports and receipt proved the tree losses and the cutting was admitted. The valuer testified, was cross-examined only on collateral matters, and the Tribunal corroborated the extent of sterilisation on its own site visit. The Appellant produced no valuation of its own and never suggested the figure was excessive.
Whether general damages of Kshs. 500,000/= were justified
Affirmed; trespass is actionable per se and the award was moderate for a continuing trespass of six decades' duration
General damages for trespass require no proof of pecuniary loss. Under Kemfro Africa principles an appellate court interferes only for misdirection, wrong factors, or an entirely erroneous estimate. The Respondent had three sets of lines across four hectares, trees felled without notice, and no compensation in over sixty years; the figure was if anything moderate.
Whether the photographic exhibits were wrongly admitted for want of a section 106B certificate
Ground failed; no timely objection, Appellant itself produced uncertified photographs, and the Tribunal's site visit independently sustained the findings
Admissibility objections must be raised when a document is produced so the defect may be cured. The Appellant approbated and reprobated by tendering its own uncertified photographs. Decisively, the Tribunal visited the land and saw the lines and damage itself, so the photographs were merely a convenient record of independently observed facts.
Legal principles established
#- Land adjudication does not create ownership; it ascertains, delimits and records rights already existing under customary tenure
- The phrase 'in pursuance or by virtue of any power conferred by any written law' in section 28 of the Land Registration Act protects only lines lawfully placed; unlawful entry does not become an overriding interest
- A party who fails to challenge an expert's valuation figure in cross-examination cannot raise the complaint for the first time in submissions
- An objection to admissibility of a document must be taken when it is produced; a party who stands by cannot resurrect it on appeal
- Interest on special damages runs from date of filing of the claim; interest on general damages runs from the date of judgment
Court orders
#- 1.The appeal is dismissed
- 2.The judgment and decree of the Energy and Petroleum Tribunal delivered on 26th March 2024 in EPA/E017/2022 are affirmed in their entirety
- 3.The award of special damages of Kshs. 21,822,713/= stands, carrying interest at court rates from 13th June 2022 until payment in full
- 4.The award of general damages of Kshs. 500,000/= for continuing trespass stands, carrying interest at court rates from 26th March 2024 until payment in full
- 5.The Appellant shall bear the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Energy and Petroleum Tribunal
- EPA/E017/2022
- Jurisdiction invoked
- First appellate jurisdiction under section 78 of the Civil Procedure Act over the Energy and Petroleum Tribunal (Energy Act, 2019)
Relief refused
#Appellant's prayer to set aside the Tribunal's judgment and to disregard the Respondent's photographic exhibits
All five grounds of appeal failed; photographs admitted without objection and Tribunal's site visit independently sustained findings
Costs
The Appellant shall bear the costs of this appeal; the Tribunal's order awarding costs of the suit to the Respondent is affirmed
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.
It protects lines lawfully placed. It does not convert an unlawful placement into an overriding interest merely because the intruder happens to be a statutory undertaker.
Land adjudication does not create ownership; it ascertains, delimits and records rights already existing on the ground.
A registration which confers no beneficial use is a title in name. The law of damages looks to substance, and in substance that portion has been taken from the Respondent as surely as if it had been fenced off.
A party which invites a tribunal to reject a professional valuation as excessive, while declining to obtain and put before that tribunal any valuation of its own, asks the tribunal to prefer counsel's assertion to an expert's sworn opinion.
(i) The appeal is dismissed. (ii) The judgment and decree of the Energy and Petroleum Tribunal delivered on 26th March 2024 in EPA/E017/2022 are affirmed in their entirety.
The Appellant shall bear the costs of this appeal.
Issues in the judgment
#Delivery date printed as 30th September 2026 despite submissions dated 2025 and events of 2024, suggesting a possible typographical error in the year
CW3's recorded evidence gives the number of indigenous trees inconsistently
CW2's recorded measurements of the affected strip are inconsistent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company PLC v Vitalis Ouma Osano", Case Analysis (2026). ELC Appeal No. E020 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5987/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.