https://new.kenyalaw.org/akn/ke/judgment/keet/2026/8

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: ENERGY AND PETROLEUM TRIBUNAL CASE NUMBER: EPA/E057/2025 BULLE AHMED MAALIM VS KENYA POWER AND LIGHTING COMPANY JUDGMENT 1. The Appellant, Bulle Ahmed Maalim, invoked the appellate jurisdiction of this Tribunalthrough a Memorandum of Appeal dated 28th November, 2025. 2. In opposition to the Appeal, the Respondent filed a Statement of Response together withits List and Bundle of Documents, all dated 16th April, 2026. 3. The Appeal arises from the decision of the Energy and Petroleum Authority (EPRA) delivered on 6th November, 2025 in dispute No. EPRA/PEACP/CP14/63991747/25/LM. 4. Being dissatisfied with the findings and Orders of the Authority, the Appellant lodged thisAppeal premised on, inter alia, the following grounds: 5. That the Authority erred both in law and in fact in finding that the Respondent hadlawfully installed electricity supply lines on Land Parcel No. A95 in 1995, long before the Appellant was allocated the said parcel of land. 6. That the Authority erred in holding that the cost of removing and rerouting the electricitysupply lines ought to be borne by the Appellant pursuant to the Respondent’s quotation letter dated 17th July, 2025 despite there being no proof that the alleged wayleave had been lawfully created, and in failing to appreciate the Appellant’s position that the said quotation arose after he had lodged a complaint with the Respondent seeking the removal of the impugned electricity supply line. 7. That the Authority failed to properly evaluate the evidence before it and consequentlyerred in finding that the electricity supply line on the suit property predated the Appellant’s allocation of the parcel, despite the Respondent having relied on an unsigned supply contract which neither specified the precise location where the electricity supply line was erected nor sufficiently established the alleged installation. 8. That the Authority disregarded documentary evidence showing that the suit propertyformed part of the parcels allocated by the Town Planning, Markets and Works Committee in 1983, thereby rendering untenable the Respondent’s assertion that the electricity supply lines had been erected on the suit property in the year 1995. # APPELLANT’S CASE 1. The Appellant contends that he is the lawful proprietor of Plot No. A95 situated withinSoko Mjinga, Wajir Township, and that the Respondent unlawfully erected electricity supply poles and lines traversing the suit property without his knowledge, authority, or consent. 2. It is his case that the impugned electricity supply lines do not serve the suit property butinstead supply electricity to neighbouring premises. The Appellant states that the continued presence of the said electricity infrastructure has interfered with his quiet possession, use, and intended development of his property. 3. The Appellant further avers that upon discovering the existence of the impugnedelectricity supply lines on the suit property, he lodged complaints and demands with the Respondent seeking their removal. In this regard, reliance was placed on, inter alia, a demand letter dated 22nd July, 2025 as well as correspondence addressed to the Energy and Petroleum Regulatory Authority concerning the alleged unlawful crossing of electricity supply lines over the suit property. 4. According to the Appellant, instead of removing the impugned electricity infrastructure,the Respondent issued a quotation dated 17th July, 2025 demanding payment of Kshs. 130,657/= for the rerouting and relocation of the electricity supply lines. The Appellant maintains that he neither consented to the installation of the said electricity infrastructure nor assumed any obligation to bear the cost of its removal or relocation. 5. The Appellant further asserts that despite numerous complaints and formal demands, theRespondent failed and/or neglected to remove the impugned electricity supply lines from the suit property, thereby continuing to interfere with his proprietary rights and intended development of the land. 6. The Appellant additionally avers that the Respondent failed to demonstrate the existenceof any lawful wayleave over the suit property and instead relied on an unsigned supply contract which neither specified the precise location where the electricity supply lines were erected nor sufficiently established the alleged installation. 7. The Appellant accordingly prays that the Appeal be allowed, that the decision of theAuthority be set aside, and that this Tribunal do find that the Respondent’s installation and continued presence of the impugned electricity supply lines on the suit property amounts to trespass. He further prays that the Respondent be ordered to remove and reroute the said power lines at its own cost. # RESPONDENT’S CASE 1. The Respondent maintains that the electricity supply lines traversing Plot No. A95 situated within Soko Mjinga, Wajir Township were not illegally installed and that the same had been erected in March 1995 for purposes of supplying electricity to the Ministry of Water in Wajir under Meter No. 12251229. 2. It is further the Respondent’s position that the Appellant seeks to mislead the Tribunalby alleging that the impugned power lines were erected in the year 2025, whereas the same had existed on the suit property long before the Appellant acquired or was allocated the land. 3. The Respondent further avers that the Appellant was allocated the suit property in theyear 2016, many years after the installation of the impugned power lines, and that the Appellant’s claim of trespass is therefore without merit. 4. The Respondent additionally states that when the Appellant commenced developmentson the suit property, the impugned power lines were already in existence and visible on the land. According to the Respondent, the Appellant failed to disclose this fact in the complaint lodged before the Authority. 5. The Respondent further maintains that it approached the Appellant with a view torerouting the impugned power lines upon payment of the requisite charges but that the Appellant declined and/or failed to honour the quotation issued for the rerouting works. It is therefore the Respondent’s position that the present Appeal emanates from the Appellant’s refusal to meet the quoted rerouting costs communicated through the letter dated 17th July, 2025. 6. The Respondent further avers that the Appellant failed to establish any claim of trespassagainst it and that no sufficient basis has been demonstrated to warrant interference with the determination rendered by the Authority. 7. The Respondent accordingly urges the Tribunal to dismiss the Appeal and uphold thedetermination of the Authority. # ISSUES FOR DETERMINATION 19. Having considered the Memorandum of Appeal, the Record of Appeal, the submissions of the parties, and the material placed before this Tribunal, the issue arising for determination is whether the present Appeal is merited. # Whether the Appeal is merited 1. The Appellant produced before the Tribunal documentary evidence establishing hisproprietorship over the suit property. Under Section 24(a) of the Land Registration Act, the registration of a person as proprietor vests in that person absolute ownership of the land together with all rights and privileges appurtenant thereto. Further, Section 25 of the Act protects the rights of a registered proprietor from interference except in the manner prescribed by law. 2. It is not in dispute that the impugned electricity supply poles and lines traverse theAppellant’s parcel. The continued occupation of the parcel by the Respondent can therefore only be justified upon proof of a legally recognizable right authorizing such occupation. In the present matter, the Respondent principally relies on the existence of a wayleave and an alleged overriding interest arising therefrom. 3. Under the Energy Act 2019, a wayleave is treated as a right of way over land for theconstruction, installation, operation or maintenance of energy infrastructure. A wayleave is not created by the mere physical presence of electricity infrastructure on land. It is a legal interest which must be shown to have arisen in accordance with the applicable statutory framework. 4. Section 46 of the Energy Act, 2006 provides that no person could enter upon land, otherthan their own, to lay or connect an electric supply line without the prior permission of the owner or occupier. Section 47 further requires that such entry be accompanied by compensation. Sections 170, 171 and 173 of the Energy Act, 2019 maintains the same principle: while electricity infrastructure may be developed over private land, such development must be undertaken strictly in accordance with the Act and other relevant written laws. 5. The statutory scheme is therefore deliberate. It balances the public interest in thedevelopment of energy infrastructure with the proprietary rights of landowners. It does not permit a party to unilaterally occupy private land and subsequently seek to justify such occupation. The burden therefore rests upon the Respondent in this instant case, as the party asserting the existence of a wayleave, to demonstrate that its entry onto and continued occupation of the suit property is grounded in law. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR, the Court observed that the legal burden of proof lies upon the party who substantially asserts the affirmative of the issue. 6. The Respondent principally relied on the assertion that the impugned electricity supplypoles and lines were erected in the year 1995, prior to the Appellant’s allotment and subsequent acquisition of the suit property. However, beyond that assertion and the unsigned supply contract produced before the Authority, no sufficient evidence was placed before this Tribunal demonstrating the manner in which the alleged wayleave came into existence, whether consent was obtained from the owner or occupier of the land, the location and extent of the alleged wayleave corridor, or whether the installation was undertaken in compliance with the statutory framework governing the creation of wayleaves. 7. The Respondent further contended that the impugned electricity supply poles and linesconstitute an overriding interest binding upon the suit property. While the Tribunal accepts that, in appropriate circumstances, rights of way and wayleaves may constitute overriding interests capable of binding land without registration, such interests must nonetheless derive from a recognizable legal basis and arise in compliance with the applicable statutory framework. Section 28 of the Land Registration Act cannot therefore be invoked to sustain an occupation whose legal origin has not been demonstrated, whether through consent, agreement, statutory process, or compulsory acquisition undertaken in the manner prescribed by law. 8. In Osano v Kenya Power & Lighting Co Ltd, the Tribunal observed that a wayleave canonly arise where the procedure prescribed by law has been complied with and that the mere existence of electricity supply lines on land does not, without more, constitute proof of a lawful wayleave. 9. Similarly, in Kenya Power & Lighting Co Ltd v Ringera & 2 Others, the Courtemphasized that the exercise of statutory powers relating to electricity supply lines must comply with the legal requirements governing entry upon land, consent and compensation, and that occupation unsupported by lawful authority may amount to trespass. 10. In the Tribunal’s considered view, the mere existence of electricity supply lines on thesuit property cannot, without more, constitute proof of a lawful wayleave. To hold otherwise would be to elevate the impugned occupation itself into proof of legality, a proposition inconsistent with the statutory framework governing the creation of wayleaves. 11. The foregoing findings inevitably invite consideration of whether the continuedoccupation of the suit property by the Respondent amounts to trespass. In Clerk & Lindsell on Torts (18th Ed., para. 18-01) trespass is defined as “any unjustifiable intrusion by one person upon land in the possession of another.” The tort protects possession, and ownership of land is prima facie evidence of the right to possession. Section 3(1) of the Trespass Act prohibits entry upon, remaining on, or the erection of structures on private land without the consent of the occupier. 12. Consistent with the foregoing principles, the law is now settled that trespass isactionable per se. Thus, in Park Towers Ltd v John Mithamo Njika & 7 Others, the Court of Appeal affirmed that proof of unauthorized entry alone suffices, without the necessity of demonstrating actual damage. 13. In light of the foregoing, the Tribunal is unable to agree with the Respondent’scontention that the Appellant’s claim is defeated merely because the electricity supply lines allegedly predated his allotment and subsequent acquisition of the suit property. The Appellant, as the proprietor of the suit property, is entitled to question the continued occupation of his land and to require the Respondent to demonstrate the legal basis upon which the impugned power lines remain on the suit property. 14. In the case of Samwel Motari Nyambati v Kenya Power & Lighting Co Ltd, the Courtfound that the Defendant had failed to exercise due care and diligence in the placement of the impugned electricity supply lines, having unnecessarily interfered with the proprietor’s use and development of the land. Consequently, the Court placed the burden of rerouting upon the Defendant and directed it to undertake the realignment of the power lines at its own cost. Similarly, in the present matter, and in the absence of proof that the impugned power lines were lawfully erected and maintained on the suit property, the Tribunal finds no legal basis upon which the Appellant may be compelled to bear the cost of rerouting or relocating the same. 15. The Tribunal is equally guided by the decision in William Kabogo Gitau v George Thuo &2 Others [2010] 1 KLR 526, where the Court observed that in civil proceedings a party discharges its burden upon establishing that its case is more probable than not, the court being required to determine which of the competing versions carries the greater degree of probability. The standard does not require proof beyond doubt; rather, the court must evaluate the totality of the evidence placed before it and determine, on a balance of probabilities, which account is more consistent with the surrounding facts, documentary material, and the applicable law. 16. Having carefully reconsidered the entirety of the material placed before it, the Tribunalis persuaded that Respondent failed to establish the lawful basis upon which the impugned electricity supply poles and lines continue to traverse the Appellant’s parcel. The Tribunal is consequently satisfied that the Appellant has established the present Appeal on a balance of probability. # Disposition 40. Based on the findings above, the Tribunal makes the following orders: 1. The Appeal is hereby allowed. The decision of the Energy and Petroleum RegulatoryAuthority delivered on 3rd June, 2025 in Dispute No. EPRA/PEACP/CP/4/687/2025 is hereby set aside. 2. It is hereby declared that the Respondent’s installation and continued presence of theimpugned power lines on the Appellant’s property constitutes trespass. 3. The Respondent shall, within sixty (60) days from the date hereof, remove/re-route theimpugned power lines traversing the Appellant’s property at its own cost. 4. The Respondent shall bear the costs of this Appeal. Dated and Delivered at Nairobi this 28th day of May 2026 ……………………..…… Ms. Doris Kinya Mwirigi Vice Chairperson ……………………..…… Eng. Buge Hatibu Wasioya Member ……………………..…… Mr. Feisal Shariff Ibrahim Member SIGNED BY/FOR: | | | --- | | **★ THE JUDICIARY OF KENYA ★** **HON. DORIS KINYA MWIRIGI** **BUGE HATIBU WASIOYA FEISAL SHARIFF IBRAHIM** ENERGY AND PETROLEUM TRIBUNAL ENERGY AND PETROLEUM TRIBUNAL Date: 2026-05-29 11:03:44 |