[2017] KEELC 1930 (KLR)
The court held that special damages must be pleaded and strictly proved, which can only be done at trial and not at the interlocutory stage. The Plaintiff failed to provide any professional or credible documentation to support the claimed losses of Kshs. 31,040,380. Furthermore, the Plaintiff's entitlement to the...
Source-derived case information.
- Citation
- [2017] KEELC 1930 (KLR)
- Parties
- Plaintiff: Anthony Mwau Wambua; Defendant: Kenya Power and Lighting Co. Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 172 of 2016
- Procedural Posture
- Interlocutory Application / Ruling on Application for Compensation and Injunctive Relief
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Wayleave Agreements, Negligence, Special Damages, Compensation for Property Damage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Mwau Wambua
Plaintiff
Kenya Power and Lighting Co. Ltd
Defendant
Procedural Posture
Interlocutory Application / Ruling on Application for Compensation and Injunctive Relief
Legal Issues
- 1 Whether the Plaintiff is entitled to compensation for damages allegedly caused by fire resulting from the Defendant's electricity cables.
- 2 Whether the Plaintiff has locus standi to bring the application regarding the suit land.
- 3 Whether special damages can be awarded at the interlocutory stage without proof.
Ratio Decidendi
The court held that special damages must be pleaded and strictly proved, which can only be done at trial and not at the interlocutory stage. The Plaintiff failed to provide any professional or credible documentation to support the claimed losses of Kshs. 31,040,380. Furthermore, the Plaintiff's entitlement to the relief sought was not established on the basis of the evidence presented in the application. As such, the application for compensation and removal of the Defendant's installations was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The Application dated 27th October, 2016 is dismissed with costs to the Defendant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 172 OF 2016
ANTHONY MWAU WAMBUA ...................................PLAINTIFF
VERSUS
KENYA POWER AND LIGHTING CO. LTD ..........DEFENDANT
RULING
1. In the Application dated 27th October, 2016, the Plaintiff is seeking for the following orders:
a.That the Defendant be ordered to compensate the Plaintiff forthwith the sum Kshs. 31,040,380/= being the quantified amount for the damages caused by the fire since he is now forced to incurred additional costs to cater for his dairy cattle as the pasture was burnt and being that he wholly depends on his commercial forestry as his source of income.
b.That pending the hearing of this Application inter parties and subsequently until this Application is heard and determined, that this Court do grant an order compelling the Defendant/Respondent, their servant or agents requiring them to remove the electric cables/wire up until that time an agreement will be reached between them and the Plaintiff/Applicant for the use of his land for transmission of electricity.
c.That the costs of this Application be provided for.
2. In support of the Application, the Plaintiff deponed that he has been away in the USA; that when he came back to Kenya, he found electricity cables and a transformer passing through his land being parcel of land known as Wamunyu/Kilembwa/273 and that the Defendant never sought for his consent before the said installation.
3. It is the Plaintiff’s case that he has been practicing commercial forestry and dairy farming on the suit land; that on or about 18th August, 2016, due to an electric fault, the live electricity transmission cables burst into flames causing damages to his property and that he received an assessment report showing the damage to his property.
4. In her Replying Affidavit, the Defendant’s Insurance Officer stated the Plaintiff does not have the locus standi to file an Application in respect to the suit land; that there was a wayleave agreement between the Defendant and the owner of the suit property and that the Plaintiff was not a party to that agreement.
5. It is the Defendant’s case that the alleged fire outbreak was not due to electric fault or negligence on its part and that in any event, the suit ought to proceed to full trial for the parties to ventilate the issues therein.
6. The parties appeared before me and made brief oral submissions which I have considered.
7. In the Plaint dated 27th October, 2016, the Plaintiff is seeking for special damages to the tune of Kshs. 31,040,380 for the alleged fire outbreak that was allegedly caused by an electric fault which destroyed his property on the suit land.
8. The Plaintiff has pleaded in the Plaint that parcel of land number Wamunyu/Kilembwa/273 is registered in his name while plot number 253 is registered in his father’s name.
9. Although the Plaintiff’s claim is in respect to special damages and for an order compelling the Defendant to remove the transformer and all electric appliances on his land, he wants those orders to be issued at an interlocutory stage.
10. It is trite that special damages must be pleaded and proved.
11. The Plaintiff can only prove that indeed he incurred losses amounting to Kshs. 31,040,380 due to the fire that broke out on the suit land at trial and not by way of an Application.
12. In any event, there is no document, professionally or otherwise, to show that indeed the Plaintiff incurred losses of Kshs. 31,040,380 due to the negligence of the Defendant.
13. For those reasons, I dismiss with costs the Application dated 27th October, 2016.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 22ND DAY OF SEPTEMBER, 2017.
O.A. ANGOTE
JUDGE