Kenya Electricity Transmission Co Ltd (KETRACO) v Obonyo & another (Environment and Land Appeal E100 of 2025) [2026] KEELC 5353 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. E100 OF 2025** **KENYA ELECTRICITY TRANSMISSION CO. LTD (KETRACO)** **APPELLANT** **-VERSUS-** **GEORGE NGWENA OBONYO** **1ST RESPONDENT/CROSS-APPELLANT** **PETER OCHIENG OPIYO** **2ND RESPONDENT/CROSS-APPELLANT** ***(Being an appeal and a cross-appeal from the Judgment and Decree of Hon. B. Ireri, Senior Principal Magistrate (as he then was), delivered on 30th October 2025 at Kisumu in Chief Magistrate's Court MCELC Case No. E257 of 2024 (formerly CMELC No. 257 of 2018 and originally Kisumu ELC Case No. 334 of 2016)*** **JUDGMENT** 1. This judgment determines both an appeal by **Kenya Electricity Transmission Company Limited (KETRACO)** (“the Appellant”) and a cross-appeal by **George Ngwena Obonyo** and **Peter Ochieng Opiyo** (“the Respondents”). Both challenge the judgment of the trial court delivered on 30th October 2025, by which the Respondents were awarded a global sum of Kshs. 10,000,000/= comprising general damages of Kshs. 2,000,000/= for continuing trespass and compensatory damages of Kshs. 8,000,000/= for non-use of 1.5 acres of land, together with costs and interest. The Appellant contends that no liability at all was established against it; the Respondents, by their cross-appeal, contend that the award was inordinately low and ought to be enhanced to reflect the market value of their land. 2. The dispute has an unusually long history. By a plaint dated 28th September 2016 and filed on 8th December 2016 in this Court as Kisumu ELC Case No. 334 of 2016, the Respondents pleaded that land parcel **Kisumu/Kasule/1261** belonged to the late Jane Ochieng Obonyo and was subdivided to yield **Kisumu/Kasule/6708, 6709 and 6710**, with parcels **Kisumu/Kasule/6708 and 2375** having been sold to the 2nd Respondent's father in 1980. They pleaded that in or about 1983 the defendant company entered upon the suit properties and erected power lines thereon without consent, and that despite demand, no compensation had been paid. They sought a declaration of entitlement to compensation, a declaration that the defendant remove its power lines in default of compensation, a permanent injunction, vacant possession, general damages for trespass and costs. 3. By its statement of defence dated 20th January 2017, the Appellant denied the claim in its entirety. Its core averments were: that it was incorporated as a limited liability company on 2nd December 2008 and was therefore not in existence in 1983 and could not have entered the suit land or erected power lines thereon; that none of its transmission lines traverses the suit parcels; that it has never owned the offending lines; and that no assets were ever transferred to it by the Kenya Power and Lighting Company (“KPLC”). In their reply, the Respondents joined issue and asserted, among other things, that KETRACO “is a major branch of Kenya Power and Lightening Ltd.” 4. The Appellant's application dated 14th February 2017 seeking to strike out the suit for being time-barred and on the ground that the Appellant was non-suited was heard and dismissed by **Kibunja, J.** on 2nd May 2018, the learned Judge holding that the claim was founded on a continuing trespass. The suit was thereupon, by consent, transferred to the Chief Magistrate's Court at Kisumu for hearing and determination, where it was registered as CMELC No. 257 of 2018. 5. The Appellant appealed against the ruling of Kibunja, J. to the Court of Appeal in **Kisumu Civil Appeal No. 142 of 2018 – Kenya Electricity Transmission Co. Ltd v Obonyo & Another [2023] KECA 1089 (KLR) (22nd September 2023)**. Before the Court of Appeal, the Appellant abandoned its challenge on limitation and confined the appeal to a single issue: whether it could be held liable for trespass occasioned by power lines which it did not own and which were erected before its incorporation in 2008. That question – whether the Appellant assumed ownership or control of the offending lines after its incorporation – was ultimately a question of fact reserved for trial. 6. Before the trial court the matter had a chequered interlocutory life. A temporary injunction was granted to the Respondents on 26th February 2019. The Respondents' case was initially heard *ex parte* before Hon. M. Agutu, SRM on 24th March 2022. On the Appellant's Notice of Motion dated 15th March 2023, **Hon. D. N. Ogoti, CM**, by a ruling delivered on 1st November 2023, found that there was no evidence of service of the hearing notice upon the Appellant and allowed the recall of the Respondents' two witnesses for cross-examination. 7. The Appellant also raised, before the trial court, a Notice of Preliminary Objection contending that that court lacked jurisdiction by dint of sections 3(1) and 224(2)(e) of the **Energy Act, 2019** as read with Regulations 4(a) and 7 of the **Energy (Complaints and Disputes Resolution) Regulations, 2012**. The objection was canvassed by way of written submissions and was dismissed with costs. The Appellant's own written submissions before me confirm as much, stating that the objection “was argued and the trial Court rendered itself on it … dismissing the same with costs.” There is a discrepancy as between the record and those submissions as to the dates of that objection and of the ruling upon it, but nothing turns upon it for present purposes. 8. The suit was ultimately heard afresh before **Hon. B. Ireri, SPM** on 6th March 2025, when PW1 and PW2 testified and were cross-examined and the Appellant called its sole witness, DW1. The parties filed written submissions and judgment was delivered on 30th October 2025. The decree was subsequently extracted and issued under the hand and seal of the trial court on 18th December 2025. I observe, in passing, that the memorandum of appeal and the record describe the judgment as “dated 14th November 2025 and delivered on 30th October 2025,” the signature block bearing the later date while the proceedings confirm delivery in open court on the earlier one. Nothing turns on the anomaly, but it is noted. **The impugned judgment** 9. The learned trial magistrate framed four issues: whether the defendant had *locus standi* in the suit (by which, read in context, the court meant whether the defendant was the proper party liable to answer the claim); whether trespass was committed by the defendant; whether the plaintiffs were entitled to the reliefs sought; and costs. 10. On the evidence, the trial court expressly recorded that the production of the plaintiffs' photographs was opposed for want of a certificate under **section 106B of the Evidence Act** and that they “were not admitted as evidence,” and that the uncertified map was equally not admitted for non-compliance with the certification requirements for public documents. 11. On the first issue, the trial court took the view that by dint of **section 138 of the Energy Act, 2019** and the designation of the Appellant as the System Operator through **Gazette Notice No. 155 of 2022**, it could “logically be deduced” that the Appellant “informally inherited” the transmission grid constructed before 2008 from KPLC and was “therefore the lawful owner of the trespassing transmission line,” reasoning that the Appellant “cannot ‘system operate’ high voltage transmission power lines without inheriting the lines from KPLC.” The court added that both PW1 and PW2 had testified that it is the employees of the defendant who service the grid line, “which builds to the supposition.” 12. On the second issue, the trial court surveyed the Trespass Act (Cap. 294), section 75 of the repealed Constitution, the Wayleaves Act (Cap. 292), section 46 of the Electric Power Act, 1997, sections 47 and 52 of the repealed Energy Act, Article 40(3) of the Constitution, section 148 of the Land Act, 2012 and sections 170 and 171 of the Energy Act, 2019, together with the decision in **Ajit Bhogal v Kenya Power and Lighting Co. Ltd [2020] eKLR**, and concluded that the erection of the power lines without the plaintiffs' consent amounted to a continuing trespass from 1983 to date. 13. On quantum, the trial court rejected the plaintiffs' claim of Kshs. 300,000,000/= (computed at Kshs. 15,000,000/= per year), observing that no evidence had been led as to how that figure was arrived at “as the valuation report was not produced as an exhibit.” Guided by **Eunice Nkirote Ringera v Kenya Power & Lighting Company [2020] eKLR**, the court found Kshs. 238,000/= “adequate compensation” for every year the land had not been used, which for 42 years translated to Kshs. 9,996,000/=, rounded off to Kshs. 10,000,000/=. Judgment was thereupon entered “in favour of the plaintiff” for: (i) a declaration of trespass; (ii) general damages for continuing trespass of Kshs. 2,000,000/=; (iii) compensatory damages of Kshs. 8,000,000/= for full non-use of 1.5 acres; (iv) a total sum of Kshs. 10,000,000/=; and (v) costs and interest. The court declined to grant the injunction and the order for removal of the lines, and expressed the view that a structured wayleave agreement between the parties would be pertinent. **The Appeal and the Cross-Appeal** 14. Aggrieved, the Appellant preferred the present appeal upon a memorandum raising fourteen grounds. Shorn of repetition, the grounds cluster as follows: **first**, that the trial court found the Appellant to have “informally inherited” the transmission grid from KPLC and to be its lawful owner without any evidence, thereby misconstruing the import of the Energy Act and Gazette Notice No. 155 of 2022 (grounds 1, 7 and 10); **secondly**, that the court relied on photographs and maps that were never tendered or admitted in evidence (ground 2); **thirdly**, that the court failed to analyse the evidence elicited in cross-examination and rendered a judgment that is internally inconsistent, including acknowledging that PW2 had no evidence that the Appellant maintains the power lines while simultaneously relying on that very testimony (grounds 3 and 6); **fourthly**, that the awards of Kshs. 2,000,000/= general damages and Kshs. 8,000,000/= compensatory damages were exorbitant, unjustified and contrary to principle (grounds 4 and 10); **fifthly**, that the court acted on personal opinion and extra-evidentiary considerations, lowered the burden and standard of proof, and ignored binding authorities of the superior courts contrary to *stare decisis* (grounds 5, 9 and 11); **sixthly**, that the court lacked and failed to adjudicate upon jurisdiction, the dispute being one that ought first to have been placed before the Energy and Petroleum Regulatory Authority (grounds 8 and 12); and **seventhly**, that the foregoing occasioned a miscarriage of justice and violated the Appellant's right to fair hearing (grounds 13 and 14). The Appellant prays that the appeal be allowed, the decision of 30th October 2025 be set aside and substituted with an order dismissing the suit with costs. 15. By their Notice of Cross-Appeal dated 26th June 2026, the Respondents contend that the learned magistrate erred in awarding Kshs. 10,000,000/=, a sum they characterise as inordinately low and an entirely erroneous estimate of the loss suffered, and in disregarding the prevailing market value of land and developments in Kisumu at the material time. They pray that the award be enhanced to an amount that fully reflects the market value, that the cross-appeal be allowed, and for costs. **The evidence before the trial court** 16. As this is a first appeal, it is necessary to set out the evidence adduced at the trial held on 6th March 2025 in some detail. **PW1, George Ngwena Obonyo**, adopted his witness statement filed on 8th December 2016 as his evidence-in-chief and produced the documents in his list dated 28th September 2016. When he sought to produce the map and photographs in the further list dated 26th January 2017, counsel for the Appellant objected on the grounds that the photographs were not accompanied by a certificate under section 106B of the Evidence Act and that the map was not certified. The trial court thereupon marked the photographs as **PMFI 7** and the map as **PMFI 8**. PW1 testified that he did not allow the defendant to trespass on his land and install power lines, that he wished to construct for the grandchildren of the late Jane but could not because of the lines, and that he had not been compensated. 17. In cross-examination, PW1 stated that the parcels belonged to Jane, his step-mother; that the lands were subdivided in 1993 and that “Ketraco constructed [the] power line” in 1993 when he was small, though he could understand what was going on; that Jane left around 1968/1969 upon the death of her husband and returned around 1998, following up on compensation in person before she died in December 1998; that he obtained his own title in 2014, which bears no restriction or endorsement of any trust; that he received no response from KETRACO; that he did not know that KETRACO was formed in 2008; that he made no inquiries to establish whether the power lines belonged to the defendant or to any other power provider; and, tellingly, when asked whether he had any evidence to show that the power lines belonged to KETRACO, he pointed to none. He produced nothing in support of the averment that KETRACO had prevented him from accessing the suit land. There was no re-examination. 18. **PW2, Peter Ochieng Opiyo**, adopted his statement filed on 8th December 2016 and relied on the documents already referred to. He testified that he noticed the power line in 1993; that he did not give KETRACO authority to install it; that he cannot utilise his land; that his houses were labelled “X” and his tenants migrated; that KETRACO installed a second power line; and that a valuation estimated the land at over Kshs. 4,000,000/=. In cross-examination he stated that his late father bought the land from Jane in 1980; that in 1993 he had no title; that his demand letter dated 5th April 2013 described the claim as one for a wayleave; that he had complained many times at Kenya Power offices and had taken the issue to the Energy and Petroleum Regulatory Authority, but had no evidence of either; that he did not see the lines being constructed; that he “knows” the lines are maintained by KETRACO, which was formerly a generating company, *but he did not have any evidence to support all those*; and that the demand letter of 14th November 2014 bears no stamp confirming service. In re-examination he stated that the lines remain in place and his tenants migrated. 19. **DW1, Michael Oluoch**, a land surveyor employed by the Appellant since 2011, adopted his witness statement dated 11th March 2020 and produced the Appellant's bundle of documents, including its certificate of incorporation dated 2nd December 2008. In cross-examination he maintained that the power lines in question were not constructed by KETRACO; that KETRACO constructs new high-voltage transmission lines, having taken over that construction function from Kenya Power in 2008; that Kenya Power is still managing the lines in question; that KPLC did not transfer any of its assets to the Appellant; and that where KETRACO constructs lines, it calls landowners and compensates them. He stated that he could not confirm whether the power lines are still on the suit land and did not know whether the Respondents' land is subject to a wayleave. **The submissions** 20. Directions were given for the appeal and the cross-appeal to be canvassed by way of written submissions. The Appellant's submissions, drawn by **M/s Wekesa & Simiyu Advocates**, are dated 5th August 2026; the Respondents'/Cross-Appellants' submissions, drawn by **M/s Amondi & Company Advocates**, are dated 6th August 2026. I have read both, together with the authorities annexed to them, and I am grateful to counsel for their industry. I summarise them only so far as is necessary. **The Appellant's submissions** 21. Counsel began with the compass of a first appeal, invoking **Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123** for the proposition that this Court must subject the evidence to a fresh and exhaustive scrutiny and reach its own conclusions. 22. On grounds 1 and 7, it was submitted that the learned magistrate commenced his analysis upon a wrong premise and could not therefore arrive at a correct outcome. The complaint is threefold: that he construed the Appellant's designation as “System Operator” as making it the owner of the lines; that he held a State Corporation to have “informally inherited” assets from a public limited liability company; and that he failed to determine the case actually pleaded, which was one of trespass by the erection of power lines, not one about system operation. Counsel emphasised that the two entities are legally distinct KPLC being a company incorporated under the Companies Act with the Government as one among several shareholders, and the Appellant a State Corporation established under the **State Corporations Act (Cap. 446)** and that **section 13** of that Act, together with rules made thereunder, governs the acquisition and disposal of the assets of a State Corporation, leaving no room for a doctrine of “informal inheritance.” Reference was made to **sections 2, 117 and 135 of the Energy Act, 2019** to show that transmission is a licensed activity, that a transmission licence authorises the licensee to operate the network *stated in the licence*, and that “transmission” is defined in operational terms. 23. Counsel further submitted that the duty to maintain and the liability to compensate in respect of infrastructure laid by KPLC remain with KPLC, relying on **Kenya Power and Lighting Company Ltd v Joseph Khaemba Njoria [2015] eKLR**, **Kenya Power & Lighting Company Ltd v James Muli Kyalo & Another [2020] eKLR** (on the licensee's statutory liability to compensate for trespass or damage), **Gichuhi v Kenya Power & Lighting Company Limited [2025] KEHC 11765 (KLR)** and **section 176(1) of the Energy Act, 2019**, and on **George Kang'ethe & Another v Kenya Power and Lighting Company Limited [2020] eKLR** as an illustration that KPLC is sued in its own name in claims of this very character. 24. On ground 2, it was submitted that the trial court relied upon photographs and a map which it had itself expressly excluded for non-compliance with section 106B of the Evidence Act and with the certification requirements for public documents. Counsel invoked **Kenneth Nyaga Mwige v Austin Kiguta & 2 Others [2015] eKLR** for the settled proposition that a document marked for identification has little, if any, evidential value until formally produced, and submitted that the Appellant, having proceeded on the footing that the documents were out of the case, was taken by surprise at judgment and thereby denied a fair hearing. 25. On grounds 3, 4, 5, 6, 10, 11 and 12, counsel addressed the burden and standard of proof, citing **sections 107, 108 and 109 of the Evidence Act** and **Evans Nyakwana v Cleophas Rwanyonyi [2015] eKLR**, and submitted that the Respondents were required to prove their case on a balance of probabilities and did not. On the ingredients of the tort, reliance was placed on **section 3(1) of the Trespass Act**, on **Musau v Mutata & Another (Environment & Land Case E102 of 2021) [2023] KEMC 109 (KLR)** and on **M'Mukanya v M'Mbijiwe (1984) KLR 761**, for the proposition that trespass is a violation of the right to possession requiring proof of entry upon land in the plaintiff's possession. It was pressed that PW1 admitted he had made no inquiry as to whose lines these were and had no evidence that they belonged to the Appellant, and that PW2's assertion about maintenance was expressly conceded to be unsupported. Since the Appellant did not exist in 1983, it could not have entered the land then **Charles Karaithe Kiarie & Others v Administrators of the Estate of John Wallace Mathare & Others [2013] eKLR** and **Clement Muturi Kigano v Kibera Development Company Limited [2019] eKLR** were cited for the principle that a non-existent company can neither hold title nor incur liability. Counsel added that the issue of “informal inheritance” was a creature of submissions and not of the pleadings. 26. On grounds 8 and 12, counsel maintained that the trial court lacked jurisdiction, the dispute being in truth one about wayleaves falling for determination in the first instance by the **Energy and Petroleum Regulatory Authority**, with an appeal to the **Energy and Petroleum Tribunal**, under the Energy Act, 2019 as read with Regulations 4(a) and 7 of the Energy (Complaints and Disputes Resolution) Regulations, 2012. **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1** was cited for the centrality of jurisdiction. 27. On damages and the cross-appeal, it was submitted that the award rested on no evidence at all: the valuation report was not admitted, the rate of Kshs. 238,000/= per annum is unexplained, and the multiplier of 42 years visits upon the Appellant a period during which, on any view, it did not exist. The Court was urged to allow the appeal, set aside the judgment and decree, dismiss the suit with costs, and dismiss the cross-appeal. **The Respondents'/Cross-Appellants' submissions** 28. Counsel for the Respondents framed four issues: whether the trial court had jurisdiction; whether it properly found the Appellant liable for continuing trespass; whether it properly evaluated the evidence; and whether the damages were excessive as the Appellant contends or inadequate as the cross-appeal contends. On the duty of a first appellate court, counsel cited **Omar v Ngowa & Another (Both suing as Administrators of the Estate of the Late Hamisi Ndoro Chaka) (Civil Appeal E225 of 2023) [2024] KEHC 8750 (KLR)**, reminding the Court that the trial magistrate enjoyed the advantage of seeing and hearing the witnesses. 29. On jurisdiction, it was submitted that the claim as pleaded was one of trespass to land and for compensation for unlawful occupation, and therefore a dispute concerning the use, occupation and infringement of proprietary rights in land. Relying on **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR** for the source of jurisdiction, and on **section 26 of the Environment and Land Court Act** as read with **section 9 of the Magistrates' Courts Act**, counsel submitted that a gazetted magistrate's court was competent. Reliance was placed on **Cape Suppliers Limited v Kenya Power & Lighting Company Plc [2022] KEELC 556 (KLR)**, where the gravamen was likewise unlawful entry and the erection of poles for a high-voltage line, and the court held the dispute to be one relating to the occupation and use of land; and on **Kiragu v Kenya Power & Lighting Company [2022] KEELC 13533 (KLR)**, where a like objection founded on the Energy Act, 2019 was dismissed. Two strands of *Kiragu* were emphasised: that a continuing trespass gives rise to a fresh cause of action from day to day, and that the Energy Act, 2019 could not be applied retrospectively to a cause of action which had accrued before its enactment. Since the state of affairs complained of commenced in 1983, counsel submitted, the Appellant cannot invoke the 2019 framework to oust a jurisdiction properly seised; and the mere presence of electricity infrastructure on private land does not convert a claim in trespass into a regulatory dispute. 30. On liability, counsel submitted that the Appellant misconstrues the finding below. The trial court's conclusion, it was urged, did not rest solely upon the notion of informal inheritance but upon the Appellant's statutory mandate under **section 138 of the Energy Act**, its designation as System Operator by **Gazette Notice No. 155 of 2022**, and the testimony of PW1 and PW2 that the Appellant's personnel service and manage the line. Counsel drew attention to **section 138(9)**, which forbids the system operator from buying or selling electrical energy directly or indirectly, and submitted that KPLC, being engaged in distribution and sale, could not have continued in that role without a conflict of interest. Critically, it was submitted that because the claim is founded on a *continuing* trespass, the material question is not only who erected the line in 1983 but who presently manages, operates and is responsible for the infrastructure whose continued presence gives rise to the cause of action; on that footing the Appellant had a sufficient nexus to the line and was the proper party to answer the claim. The shareholding structure of KPLC was said to be immaterial. 31. On the evaluation of the evidence, counsel submitted that the trial court did consider the totality of the material, relying at page 82 of the Record of Appeal upon the map and the photographic evidence, and at page 85 upon the express testimony of PW2 that the high-voltage lines traversing his land are maintained by KETRACO. **Peters v Sunday Post Ltd [1958] EA 424** was cited for the proposition that an appellate court will not ordinarily interfere with a finding of fact unless it was based on no evidence or the court below proceeded on wrong principles. The Appellant, it was said, has demonstrated no misapprehension of the evidence but merely disagreement with the outcome, and invites this Court to substitute its own preferred interpretation an invitation which ought to be declined. 32. On quantum, counsel invoked **Butt v Khan** and **Kemfro Africa Ltd & Another v Lubia & Another (No. 2) [1987] KLR 30** and submitted that while the Appellant has shown no basis for interference with the award, the cross-appeal falls squarely within the second limb of those authorities. Having found a continuing trespass and a deprivation of the use of 1.5 acres over 42 years, the learned magistrate is said to have left out of account a relevant factor, namely the prevailing market value of land and developments in Kisumu, and to have arrived at a figure that is inordinately low. The Court was urged to dismiss the appeal with costs, allow the cross-appeal, and substitute an enhanced award reflecting that market value, with costs of both the appeal and the cross-appeal. **Analysis and determination** 33. This being a first appeal, the duty of this Court is to re-evaluate, re-assess and re-analyse the evidence on record afresh and to reach its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify and making due allowance for that. Having considered the record, the grounds of appeal, the cross-appeal and the rival submissions, the following issues commend themselves for determination: **(i) whether the trial court had jurisdiction to hear and determine the suit;** **(ii) whether the Respondents proved, on a balance of probabilities, that the Appellant was liable to them in trespass;** **(iii) whether the trial court erred in relying on documents that were not admitted in evidence;** **(iv) whether the awards of damages were merited, and whether they ought to be enhanced as urged in the cross-appeal; and** **(v) who bears the costs.** **(i) Whether the trial court had jurisdiction** 35. Jurisdiction is everything, and without it a court must down its tools: **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**. The Appellant's complaint under grounds 8 and 12 is that the dispute is one over which the Energy and Petroleum Regulatory Authority, and on appeal the Energy and Petroleum Tribunal, enjoy primary jurisdiction under the Energy Act, 2019 and the Energy (Complaints and Disputes Resolution) Regulations, 2012, and that the learned magistrate failed to adjudicate upon the issue. 36. The second limb of that complaint is answered by the record. A preliminary objection on precisely this footing was taken, canvassed by written submissions and determined against the Appellant, which did not appeal that ruling. The Appellant's own submissions before me say as much. The assertion that the issue was never adjudicated is therefore not borne out. 37. The first limb requires a little more. The touchstone is the nature of the claim as pleaded. Stripped to its essentials, the plaint alleged an entry upon private land without consent, the erection and retention of structures upon it, and a consequent deprivation of use for which compensation was sought. That is a claim in trespass. Disputes relating to the environment and to the use and occupation of, and title to, land fall within Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, and are exercisable by gazetted magistrates within their pecuniary limits under section 26 of that Act as read with section 9 of the Magistrates' Courts Act, 2015. I respectfully adopt the reasoning in **Cape Suppliers Limited v Kenya Power & Lighting Company Plc [2022] KEELC 556 (KLR)**, where Mogeni, J. held that a grievance about illegal entry onto and illegal use of land for the purpose of supplying electric power is a dispute relating to the occupation and use of land, and in **Kiragu v Kenya Power & Lighting Company [2022] KEELC 13533 (KLR)**, where M. D. Mwangi, J. distinguished a dispute between a licensee and a party to the regulatory relationship from a dispute about proprietary rights in land. The presence of energy infrastructure on the land does not, without more, transmute a claim in trespass into a regulatory complaint. 38. Two further considerations put the matter beyond argument. The first is one the Respondents themselves advance, and it is a good one: the cause of action here accrued long before the Energy Act, 2019 came into force, and that Act, not being merely declaratory or procedural, is *prima facie* prospective in its operation **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR**. A statutory dispute-resolution regime enacted in 2019 cannot be deployed to oust, retrospectively, a jurisdiction which was properly seised of a claim filed in 2016 in respect of a trespass said to have begun decades earlier. The second is the obvious tension in the Appellant's own position: its case throughout has been that it neither owns, constructed, nor operates the offending line. A regime crafted for complaints against energy licensees in respect of their undertakings sits uneasily with a defence that the Appellant has no undertaking on the suit land at all. The trial court had jurisdiction, and its pecuniary limits were not exceeded. Grounds 8 and 12 fail. **(ii) Whether liability in trespass was proved against the Appellant** 39. Trespass to land is a wrong against possession, constituted by an unjustifiable entry upon, or the placing or keeping of a structure upon, the land of another without consent. The ingredients, as the Appellant correctly submits by reference to **Musau v Mutata & Another [2023] KEMC 109 (KLR)** and **M'Mukanya v M'Mbijiwe (1984) KLR 761**, are entry upon land in the possession of another and the remaining upon it or the placing or projecting of an object upon it. Whoever asserts the tort must prove it: sections 107, 108 and 109 of the Evidence Act place the legal and evidential burden upon the party who would fail if no evidence at all were given on either side; **Evans Nyakwana v Cleophas Rwanyonyi [2015] eKLR**. The Respondents' ownership of the suit parcels was not seriously contested. What was hotly contested, and what constituted the fulcrum of the case as the Court of Appeal observed when this very dispute was before it in Civil Appeal No. 142 of 2018 was whether the Appellant, a company incorporated on 2nd December 2008, owns or controls a transmission line erected, on the Respondents' own pleadings, in or about 1983 (or, on their oral evidence, in 1993), or assumed ownership or control of it after incorporation. 40. I should say at once that I do not accept the Appellant's argument in its widest form. Counsel's submission, founded on **Charles Karaithe Kiarie** and **Clement Muturi Kigano**, that a company cannot be liable for anything preceding its incorporation is unimpeachable as far as it goes; but it does not go the whole distance. The Respondents' claim is not confined to the original entry. It is pleaded, and was found below, as a *continuing* trespass; and, as *Kiragu* records by reference to Clerk on the Law of Torts, every continuance of a trespass is a fresh trespass giving rise to a new cause of action from day to day. It follows that a party who did not make the original entry may nonetheless become liable if it adopts and continues the trespass by keeping, controlling or maintaining the offending structure upon the land. The Appellant's non-existence in 1983 is therefore not, by itself, a complete answer to the claim. The Respondents' submission that the material question is who presently manages and is responsible for the line is, as a matter of law, correctly directed. 41. The difficulty for the Respondents is that this route demands proof of the Appellant's present control of, or responsibility for, the offending line and that proof failed. PW1 candidly conceded that he made no inquiries as to whether the lines belonged to the Appellant or to any other power provider, and that he had no evidence that they belonged to the Appellant. As for PW2, upon whose testimony at page 85 of the Record of Appeal the Respondents now place their principal reliance, his assertion that KETRACO maintains the lines was, on his own admission in cross-examination, unsupported by any evidence the learned trial magistrate himself recorded, in summarising that very evidence, that PW2 “did not have any evidence to support all those.” His demand letter of 5th April 2013 characterised the claim as a wayleave claim, and his complaints had in fact been pursued at the offices of Kenya Power. Against that stood the evidence of DW1 – that the lines were constructed by KPLC before the Appellant's incorporation, that KPLC continues to manage the lines it constructed, and that no assets were ever transferred by KPLC to the Appellant which was not shaken in cross-examination. A bare assertion of belief, expressly conceded by the witness to rest on nothing, and contradicted by the only direct evidence on the point, cannot discharge the burden of proof on a balance of probabilities. 42. Faced with that evidentiary void, the learned magistrate constructed liability by another route: from section 138 of the Energy Act, 2019 and the designation of the Appellant as System Operator by Gazette Notice No. 155 of 2022, he “logically deduced” that the Appellant had “informally inherited” the pre-2008 transmission grid from KPLC and was therefore “the lawful owner of the trespassing transmission line.” With respect, that reasoning cannot withstand scrutiny, for four reasons. 43. **First**, system operation and ownership are distinct legal concepts. “System operation” is defined in the Energy Act, 2019 in operational terms generation scheduling, commitment and dispatch, transmission co-ordination, congestion management and allied activities for the reliable and efficient operation of the national grid. Section 138(9) in fact prohibits the system operator from direct or indirect trading in electrical energy, which underscores that the designation is a co-ordination and management function, not a conveyance of proprietary interest in transmission assets. The Respondents' argument from section 138(9) proves rather too much: it explains why KPLC could not remain the system operator, but it says nothing at all about who owns the steel and conductors standing on the suit land. Consistently with that, sections 117 and 135 of the same Act make transmission a licensed activity and authorise a transmission licensee to operate the network *stated in its licence* and there is nothing on this record to show that the line traversing the suit parcels is a line stated in the Appellant's licence. 44. **Secondly**, there is no doctrine of “informal inheritance” of assets or liabilities known to our law. The Appellant is a body corporate with a legal personality distinct from KPLC, see **Salomon v Salomon & Co. Ltd [1897] AC 22.** The assets of a State Corporation are acquired and disposed of in accordance with the State Corporations Act (Cap. 446) and the rules made under section 13 thereof; and, more generally, the assets and liabilities of one legal person pass to another only by operation of a statutory vesting provision, a transfer or vesting order, or a conveyance or assignment. None was pleaded, produced or proved. The finding of ownership was therefore an inference of fact drawn from no evidence, and an inference of law drawn from a misconstruction of the statute. I add that the point was not even pleaded; it emerged for the first time in submissions, and a court ought to be slow to found liability upon a case which the party against whom it is found never had a fair opportunity to meet. 45. **Thirdly**, there is an insuperable temporal difficulty. The Gazette Notice took effect in 2022. A designation made in 2022 cannot vest in the Appellant ownership of physical infrastructure erected by another entity in 1983 or 1993, still less do so retrospectively so as to constitute the Appellant a trespasser from that earlier date and to found an award computed over 42 years. Here the Respondents' own submission on jurisdiction returns to confront them. They argued, correctly and with the authority of *Macharia* and *Kiragu*, that the Energy Act, 2019 is prospective and cannot be applied backwards to a cause of action that accrued in 1983. That proposition cannot be true for the purpose of defeating the jurisdictional objection and false for the purpose of founding liability. If the 2019 Act does not reach back to 1983, it cannot make the Appellant the owner and hence the trespasser as from 1983. 46. **Fourthly**, the judgment is internally inconsistent and, in the result, reverses the burden of proof. Having correctly recorded that PW2 had no evidence that the Appellant maintains the lines, the court nonetheless relied on the testimony of PW1 and PW2 that the Appellant's employees service the grid line as “build[ing] to the supposition” of inheritance. 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. Compounding this, the learned magistrate faulted DW1 because “he failed to convince the court” why the Appellant's officers maintain the grid. It was not for the Appellant to disprove ownership; it was for the Respondents to prove it. 47. The Respondents' reliance on **Peters v Sunday Post Ltd** does not assist them. The principle they invoke carries its own exception, and this case falls within it: the impugned findings were not the product of an advantage of seeing and hearing witnesses, which no appellate court can replicate, but of an inference drawn from no evidence and from a misconstruction of a statute. That is precisely the territory in which an appellate court not only may, but must, intervene. 48. I therefore find that the Respondents did not prove, on a balance of probabilities, that the Appellant owned, controlled or was responsible for the transmission line traversing their parcels, whether at the date of erection or at any time thereafter. 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. Let me be plain that the grievance disclosed by this record is a real one. A family whose land has, since the 1980s or 1990s, hosted a 132kV transmission line without a wayleave and without a shilling in compensation has a legitimate complaint, and the statutory scheme whether under section 52 of the repealed Act or section 176 of the Energy Act, 2019 contemplates that the entity which lays and maintains such infrastructure answers for it. But on the evidence adduced, that complaint lies, if at all, against the entity which erected and owns the line, which on this record is KPLC. KPLC is not before me, and nothing in this judgment is to be taken as a finding for or against it. Grounds 1, 3, 5, 6, 7, 9 and 11 succeed. **(iii) Reliance on documents not admitted in evidence** 49. This conclusion is fortified by the manner in which the documentary evidence was treated. At the trial of 6th March 2025, the photographs and the map were, upon the Appellant's objection, merely marked **PMFI 7** and **PMFI 8** respectively; they were never produced, and the judgment itself records in terms that they “were not admitted as evidence.” The legal consequence of marking a document for identification is well settled: it does not become evidence, and no reliance may be placed on its contents, unless and until it is formally produced and admitted. See **Kenneth Nyaga Mwige v Austin Kiguta & 2 Others [2015] eKLR**. Yet the judgment goes on to find that “both the plaintiffs testified and produced bundles of pictures showing how the 132kV transmission [lines] have been constructed on their parcels,” and that “the plaintiffs produced maps before this Honourable court which clearly shows that the electrical pylons pass through the Kisumu/Kasule community.” The Respondents' answer that the trial court was entitled to rely upon the map and the photographs as marked at page 82 of the Record of Appeal does not meet the objection. The very prefix “MFI” records that the documents were marked for identification only, and the trial court itself said in terms that they were not admitted. 50. The explanation for this contradiction appears from the record itself. The plaintiffs' case had first been heard *ex parte* on 24th March 2022, when the photographs, maps and a valuation report were received as exhibits. Those proceedings were, for all practical purposes, overtaken by the ruling of 1st November 2023 recalling the witnesses precisely because the Appellant had been condemned unheard; and at the fresh hearing the same documents failed the test of admissibility. The impugned judgment, however, reproduces findings drawn from the superseded *ex parte* record including reliance on the very photographs, maps and valuation material that stood excluded and passages which appear to have been transposed from the decision in *Ajit Bhogal* (including references to a “second 132KV line” constructed after permission was “denied on numerous occasions,” matters which find no support in the evidence in this case). A judgment must rest upon the evidence admitted at the trial actually held. Reliance on excluded material of this centrality was a material misdirection which, on its own, would suffice to vitiate the findings on trespass. Ground 2 succeeds, and with it grounds 13 and 14. **(iv) The damages and the cross-appeal** 51. In view of my findings on liability, the awards of damages must fall away. Nonetheless, because of the cross-appeal, and lest I be found wrong on liability, I shall consider quantum. An appellate court will interfere with an award of damages only where the trial court acted on wrong principles, took into account irrelevant factors or omitted relevant ones, or where the award is so inordinately high or low as to represent an entirely erroneous estimate, see **Kemfro Africa Ltd t/a Meru Express Services v Lubia & Another (No. 2) [1987] KLR 30**; **Butt v Khan**. Both parties, it may be noted, invoke the same authorities, each fastening upon a different limb of them. 52. The award here cannot survive that test, for several reasons. **First**, it had no evidential foundation: the trial court itself found that the valuation report was not produced as an exhibit and that no evidence supported the rate claimed, yet it proceeded to adopt a rate of Kshs. 238,000/= per year that is explained nowhere in the judgment and bears no discernible arithmetical relationship to the comparator relied upon (*Eunice Nkirote Ringera*). **Secondly**, the multiplier of 42 years (1983–2025) contradicts the judgment's own recital elsewhere that the land had been denied to the plaintiff “since 1999,” and the oral evidence of both PW1 and PW2 that the line was erected in 1993; and, as the Appellant rightly observes, it would in any event visit upon the Appellant a quarter-century during which it did not exist. **Thirdly**, the finding that 1.5 acres was rendered unusable has no anchor in any admitted evidence. **Fourthly**, the court made a single, global award “in favour of the plaintiff” in the singular, without apportionment between two plaintiffs who own distinct parcels, rendering the decree uncertain in its incidence. **Fifthly**, the twin awards of general damages for the trespass and “compensatory damages” for the self-same non-use of the land carry an evident risk of double compensation for a single continuing interference. Grounds 4 and 10 accordingly succeed. 53. The cross-appeal fares no better on its own terms. Its sole complaint is that the learned magistrate left out of account the prevailing market value of land and developments in Kisumu. But enhancement of an award to market value presupposes admissible evidence of market value, and there was none. The valuation reports were either not produced or failed at the threshold of admissibility; PW2's *viva voce* estimate of “over 4 million” itself far below the sum in fact awarded was unsupported by any produced report; and no comparable sales, rental values or wayleave rates were placed before the trial court. A court cannot enhance an award into an evidential vacuum, and the second limb of *Kemfro* is not a licence to substitute a larger figure arrived at by the same unsupported method as the smaller one. Had liability been established, the proper course would have been an award of general damages assessed on established principle, not the arithmetic exercise undertaken below. The cross-appeal must fail. **(v) Costs** 54. Costs follow the event as a general rule under section 27 of the Civil Procedure Act, but the discretion remains that of the court. Two considerations weigh with me. Weighing on the circumstances of this appeal, I consider that the fair order is that each party bears its own costs of the appeal, the cross-appeal and the proceedings before the trial court. **Final orders** 55. In the end, the appeal succeeds and the cross-appeal fails. Accordingly, I make the following orders: **I. 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.** **II. The Cross-Appeal dated 26th June 2026 is hereby dismissed.** **III. Each party shall bear its own costs of the Appeal, the Cross-Appeal and of the proceedings before the trial court.** **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 31ST DAY OF AUGUST 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:-** **Mr. Masinde for the Appellant.** **Ms. Obeto for the Respondents/Cross-Appellants.** **Court Assistant: Joanne Omondi.**