Abdallaplain & 133 others v Kenya Electricity Transmission Company (KETRACO) & 3 others (Tribunal Appeal E092 of 2025) [2026] KELAT 23 (KLR) (9 April 2026) (Judgment)

Abdallaplain & 133 others v Kenya Electricity Transmission Company (KETRACO) & 3 others (Tribunal Appeal E092 of 2025) [2026] KELAT 23 (KLR) (9 April 2026) (Judgment) Neutral citation: [2026] KELAT 23 (KLR) Republic of Kenya In the Land Acquisition Tribunal Tribunal Appeal E092 of 2025 NM Orina, Chair, G Supeyo & Ruth Okal, Members April 9, 2026 Between Omari Khamis Abdalla & 133 others & 133 others Plaintiff and Kenya Electricity Transmission Company (KETRACO) 1st Defendant Kenya Power & Lighting Company 2nd Defendant National Commission 3rd Defendant The Attorney General 4th Defendant Judgment 1.The Plaintiffs aver that they are residents of Malindi within Kilifi County in the Republic of Kenya. They include natural persons, a public school and two registered societies being religious institutions. It is their case that at all material times relevant to this suit, they were the legal owners and residents in quiet possession of various parcels of land in Mguruleni, Kasimbiji and Ganda in Malindi Sub-County that is currently in development as Mguruleni wayleave trace. 2.It is the Plaintiffs’ case that sometime in the year 2017, the Defendants approached the Plaintiffs requiring them to vacate on the grounds that their parcels of land would be acquired for the purpose of establishing a wayleave trace for installation of an electrical transmission line. The Plaintiffs aver that the Defendants have failed or otherwise refused to compensate them for the use of their land as aforesaid. 3.Consequently, the Plaintiffs procured the services of a valuer who valued their properties at a value of Kshs. 119,136,450.00 which they now pray for against the Defendants as due compensation for their properties. The Plaintiffs also pray for award of special damages for costs of valuation, interest and costs of the suit. 4.The claim is supported by the witness statement of the 1st Plaintiff – Omar Khamis Abdalla – on behalf of the other Plaintiffs, who reiterates the averments in the Plaint and asserts that the Plaintiffs are the legal and beneficial owners of the affected properties. 5.The 2nd Defendant filed a statement of defence in response to the claim dated 27 November 2025. In its defence, the 2nd Defendant avers that the Plaintiffs’ suit is incompetent, incongruous, misconceived and an abuse of the court process. The 2nd Defendant further avers that it is not privy to the ownership and possession of the suit properties and denies all averments to the effect that the 2nd Defendant approached the Plaintiff in 2017 to inform them of an intended acquisition. 6.The 2nd Defendant further avers that the Plaintiffs are perpetuating fraud by filing the instant suit for reasons that they seek to obtain compensation by false pretenses. The 2nd Defendant also impugns the Plaintiffs’ suit for lacking material particulars. 7.The 2nd Respondent denies the Tribunal’s jurisdiction and avers that the issues set out in the Plaint are a preserve of either the Energy and Petroleum Regulatory Authority (EPRA) or the Energy and Petroleum Tribunal. 8.The 3rd Defendant opposed the suit through a statement of defence dated 14 October2025. In its defence, the 3rd Defendant avers that it is a stranger to the issues in the Plaint as it has no role in the initiation of applications for wayleaves and its role is limited to processing applications submitted by entities like the 1st and 2nd Defendant. 9.The claim against the 1st Defendant was withdrawn by consent on 20 November 2025. The 3rd and 4th Defendants did not take part in these proceedings. 10.The suit was orally heard on 14 January 2026 when the parties presented their witnesses. The Plaintiffs’ first witness was Mr. Omari Khamis Abdallah (PWI). He was sworn in and testified that he is a small-scale businessman and together with his co- plaintiffs had filed the instant suit seeking compensation so that they could move out of the suit properties. He averred that the power lines on the suit properties were installed without their participation or knowledge. 11.On cross-examination by Mr. Ododa for the 2nd Defendant, PWI testified that a gentleman by the name of Korir had approached the Plaintiffs in 2017 to inform them that power lines were going to be erected on their properties. He further testified that they were not instructed to vacate at the time the power lines were being erected and the power lines were installed without any information being given to the affected land owners. 12.PWI further testified that the Plaintiffs are legal beneficial owners of the suit properties but they had not been issued with title documents to the properties. The witness also stated that he wasn’t aware that the suit properties had been titled and that he had not conducted a search. He also averred that he wasn’t aware that the title had been transferred to the 2nd Defendant. 13.The witness confirmed that he had not indicated anywhere that his parcel of land had been taken by the 2nd Defendant but averred that they did not find out which company it was when the power lines were installed. 14.On re-examination, the witness clarified that the team that went to the ground was led by Mr. Korir and the residents had seen vehicles belonging to the 2nd Defendant. The witness also testified that he had lived on the property for more than 20 years while other Plaintiffs had lived for different periods with some having lived for up to 50 years. It was PWI’s testimony, therefore, that the Plaintiffs laid claim to the suit properties onthe basis of occupation over time. He further contended that no one had laid claim to the parcels other than the plaintiffs. 15.The Plaintiffs’ second witness (PWII) was Mr. Isaiah Obogeh a valuer by profession plying his trade through Mbaja & Co. He was sworn in and testified that he had been instructed to carry out a valuation by the Plaintiffs for the parcels affected by the wayleave trace. PWII produced his valuation report as evidence. 16.Upon receiving instructions, PWII testified, he met the community members and wrote a letter to the OCS and OCPD of the area. He testified that on the day he visited the parcels of land the Plaintiffs showed him their homes and he measured the houses, the distance and he noted the names of the affected owners and how they were affected. 17.He further indicated that he had not been paid for the work but had issued invoices for the sum of Kshs. 800,000.00 18.On cross-examination by Mr. Ododa, PWII testified that his report included Mguruleni even though he had stated Ganda and Kasumbiji in the introduction. He further testified that he had obtained information on who was responsible for the wayleave trave from the community although he had not obtained concrete evidence. 19.The witness further testified that he had not conducted any searches on the properties and had relied on a map but the same had not been produced in evidence. He testified that the parcel that was inspected was a block and the community had provided him with information on ownership. 20.The witness clarified on re-examination that he had indicated the market values of the affected parcels. This marked the close of the Plaintiffs’ case 21.The 2nd Defendant called one witness - Mr. Emmanuel Ochieng Ouma (DW). He adopted his witness statement dated 10 December 2025, list and bundle of documents, and a further statement and list and bundle of documents dated 12 January 2026 as his evidence in chief. DW testified that he works for the 2nd Defendant as a wayleave officer. He testified that the 2nd Defendant had established that this area is in Malindi Sub-County. Upon establishing the area, the witness testified that they acquired maps which established that in some plots land has been demarcated and it has registered owners. 22.DW further testified that they obtained a sample of a search and they had in their possession wayleave consents for the area. It was his testimony that for creation of wayleaves the 2nd Defendant only engages registered owners of the properties affected. 23.On cross-examination by Mr. Ole Kina for the Plaintiffs, DW testified that he carried out a search on 12 January 2026 but had not established on the ground whether the Plaintiffs were in occupation. He also averred that he had visited the area in 2018 and he had seen mixed structures in the area. 24.The witness was, however, not certain about the power lines that had been complained about. He testified that the valuation relied upon by the Plaintiffs had not specified which parcel number they were occupying. He also averred that he could not tell the parcel number from the map. He further refuted claims that power lines had been erected over people’s dwellings and averred that power lines would not ordinarily be built where people are residing. 25.On re-examination, the witness testified that they had conducted a search on a sample of the parcels in the area being parcel number 54 and the Plaintiffs were not shown as the owners in the search. He further testified that as a wayleave officer he has a duty to confirm ownership. Analysis and Determination 26.The Plaintiffs have predicated their case on the tort of trespass. They assert that the alleged actions of the 2nd Respondent amount to trespass on their property and for that infringement they are entitled to damages. The 2nd Defendant avers that the Plaintiffs have not discharged the burden of proof hence they are not entitled to the prayers for an award of damages. It is clear, therefore, that the issue before us is whether the Plaintiffs have established that the 2nd Defendant has trespassed into their property and what remedies lie if we find in the affirmative. Secondly, although the 2nd Defendant has not addressed the question of jurisdiction in its submissions, the same was raised in its pleadings and we find it prudent to address it in order to be satisfied that we are properly seized with jurisdiction before delving into the issues identified. 27.The Tribunal’s jurisdiction is set out under Section 133C of the Land Act as follows:Jurisdiction of the Tribunal 1.The Tribunal has jurisdiction to hear and determine appeals from the decision of the Commission in matters relating to the process of compulsory acquisition of land. 2.A person dissatisfied with the decision of the Commission may, within thirty days, apply to the Tribunal in the prescribed manner. 3.Within sixty days after the filing of an application under this Part, the Tribunal shall hear and determine the application. 4.Despite subsection (3), the Tribunal may, for sufficient cause shown, extend the time prescribed for doing any act or taking any proceedings before it upon such terms and conditions, if any, as may appear just and expedient. 5.If, on an application to the Tribunal, the form or sum which in the opinion of the Tribunal ought to have been awarded as compensation is greater than the sum which the Commission did award, the Tribunal may direct that the Commission shall pay interest on the excess at the prescribed rate. 6.Despite the provisions of sections 127, 128 and 148 (5), a matter relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way shall, in the first instance, be referred to the Tribunal. 7.Subject to this Act, the Tribunal has power to confirm, vary or quash the decision of the Commission. 8.The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23 (2) and 47 (3) of the Constitution, using the framework set out under the Fair Administrative Act or any other law. 28.The question whether the Tribunal has jurisdiction to adjudicate over disputes on creation of wayleaves especially energy related wayleaves is a matter that has been addressed by this Tribunal previously where we determined that such disputes lie before the Tribunal [see, Mathew v Kenya Electricity Transmission Company Limited (KETRACO) [2024] KELAT 516 (KLR), Mutiso v Kenya Power & Lighting Company Limited [2024] KELAT 1547 (KLR) and Thuo v Kenya Electricity Transmission Company Limited & 2 others [2024] KELAT 1666 (KLR)]. Our determination on this jurisdictional issue has also been affirmed by the Environment and Land Court in Kenya Electricity Transmission Company Limited v Matthew [2025] KEELC 4878 (KLR) where the court stated as follows:50.A contextual and purposive reading of this provision reveals that the Energy Act defers such matters to a different legal regime rather than retaining it. This legislative intent is reinforced by the phrase “in accordance with the provisions of the relevant written law.” In this regard, the Land Act emerges as the applicable and “relevant written law.” Section 133C (6) of the Land Act is unequivocal in mandating that all disputes relating to among others creation of wayleaves must in the first instance be referred to the Land Acquisition Tribunal. 29.We, are therefore, properly seized of the matter before us and the 2nd Defendant’s objection to that extent fails. 30.On the question of whether there was trespass, we are guided by the provisions of the Section 3(1) of the Trespass Act, Cap 294 which provides that:“Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.” 31.An action for trespass requires that the claimant proves to the required standard – on a balance of probabilities – that he or she is either the bona fide owner or proprietor of the suit property or that he or she is in or entitled to immediate possession of the suit property or both; and second, that the sued party has intruded and/or occupied and/or remained in the suit property without any justifiable cause. The Court of Appeal inCharles Ogejo Ochieng v Geoffrey Okumu [1995] eKLR held as follows:Trespass is an injury to the possessory right, and therefore the proper Plaintiff in an action for trespass to land is the person who has title to it, or a person who is deemed to have possession at the time of the trespass. 32.For a party to succeed in an action for trespass, therefore, they do not need to prove that they own the suit property but they can succeed on the basis of possessory rights. However, in Mohamed v Board of Management Pentrose Community School & another [2026] KECA 501 (KLR), the Court of Appeal affirmed that, “for a claim for trespass to be founded, the person alleging trespass must demonstrate a valid proprietary interest in the land in question.” 33.It is incumbent upon the claimant, therefore, to demonstrate a valid proprietary interest in the land that they are alleging that trespass has occurred upon it. In the instant case,the Plaintiffs assert a possessory interest on the suit property which they aver they have occupied for a varied period of time being between 20 to 50 years. The Plaintiffs have not provided any information identifying the specific parcel of land that they occupy. They have not provided any title to the land or a parcel number that could identify the parcel in question. This presents an evidential shortcoming that cannot be ignored for the following reasons. 34.First, a clear identification of the affected parcel of land through its parcel number and a survey report or cadastal map is necessary to ascertain the violation complained of and to enable the Defendants to have reasonable information to defend themselves. Second, a general complaint that the Defendants have trespassed onto the Plaintiffs parcels of land without identifying the specific parcel(s) hampers the resolution of the dispute because it leaves the Tribunal speculating on whether or not the trespass has been proved. It is not possible, on the basis of the available information, to ascertain whether the Plaintiffs were in possession of the affected area of the suit property at the time the power lines were installed due to the failure to properly identify the suit property. 35.We acknowledge the difficult the 2nd Defendant has experienced in trying to defend the claims without that crucial information of the parcel number. For instance, the 2nd Defendant has demonstrated that it has signed wayleave agreements in the general area with some affected persons, it has also demonstrated that some affected parcels are registered in names of other people who are not the Plaintiffs before us. It is possible that the parcel which the Plaintiffs have laid claim to has been subject to a wayleave agreement with another party who is not before us. But that can only be speculation. The provisions of Section 107(1) of the Evidence Act on where the burden of proof lies are trite and we need not say more on this. 36.Our conclusion is that the Plaintiffs have failed to adduce the necessary evidence identifying the affected parcel of land and for that reason we are unable to ascertain whether they have a valid proprietary interest which has been interfered with by the alleged trespass. The claim is hereby dismissed in its entirety. We award no costs considering the nature of the claim as representative of interests of many in a community. 37.As a side note, we note that the site visit conducted by the Tribunal’s Deputy Registrar in the presence of the Plaintiffs ascertained that there are structures where power lines have been erected. This poses a significant risk to life and limb and it would be remiss for us not to ask the 2nd Defendant to investigate that situation and to take the necessary measures to ensure that a tragedy is averted. DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF APRIL 2026 DR. NABIL M. ORINA - CHAIRPERSON GEORGE SUPEYO - MEMBERRUTH OKAL - MEMBERIn the presence of:Mr. Ole Kina For The PlaintiffsLucy – Court Assistant