https://new.kenyalaw.org/akn/ke/judgment/keet/2026/10

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: ENERGY AND PETROLEUM TRIBUNAL CASE NUMBER: EPA/E039/2025 JAMES LOKORIKWIR LOKIMOI VS KENYA POWER AND LIGHTING COMPANY JUDGMENT 1. This is an appeal arising from the decision of the Energy and Petroleum RegulatoryAuthority (“EPRA” or “the Authority”) delivered on 18th August 2025 in Dispute No. EPRA/PEACP/CP/4/726/2025. The dispute concerns the alleged unlawful entry by the Respondent, Kenya Power and Lighting Company PLC, onto the Appellant's parcel of land known as West Pokot/Kisaunet/65, where the Respondent is alleged to have erected electricity poles, cut down trees, and installed electricity lines without the Appellant's consent or due process. The Appellant contends that these actions amounted to trespass and resulted in substantial loss and damage to his property. 2. The Appellant had sought before EPRA, among other reliefs, an eviction order against theRespondent, special damages for the value of the affected land and felled trees, general damages for trespass, costs, and other consequential reliefs. The Appellant sought special damages of Kshs. 3,346,309 being his assessed value of the trees cut down. 3. Upon determination of the complaint, the Authority did not award the pleaded specialdamages. Instead, EPRA directed that compensation for the affected land be determined through a joint independent valuation and awarded the Appellant Kshs. 300,000 as general damages for trespass. 4. EPRA found that although there was trespass on a portion of the land, it declined to issuean eviction order or direct the removal of the electricity poles and power lines. This was on the ground that it would be impractical, as it would affect the power supply to Chesimbulbul Primary School. It directed the parties to negotiate a wayleave agreement. 5. Dissatisfied with that determination, the Appellant lodged the present appeal challenging,inter alia, the refusal to order the Respondent's eviction, the failure to award special damages in accordance with the pleaded claim, the alleged inadequacy of the general damages awarded, and the failure to award costs of the proceedings. **APPELLANT’S SUBMISSIONS** 1. The Appellant submits that the appeal is meritorious and should be allowed as EPRAerred in law and in fact in declining to grant the substantive remedies sought despite finding that the Respondent had unlawfully trespassed onto the Appellant's land. 2. The Appellant argues that having expressly found that the Respondent illegally andunlawfully trespassed onto Land Parcel No. West Pokot/Kisaunet/65, the Authority ought to have granted an eviction order directing the removal of the electricity infrastructure from the property. It is submitted that EPRA erred by declining to do so merely because the electricity line served Chesimbulbul Primary School. 3. The Appellant relies on the doctrine that courts ought not sanction illegality and cites thedecision in Kenya Airways Limited v Satwant Singh Flora [2013] eKLR to argue that illegal acts remain unenforceable. The Appellant further contends that Sections 171 and 173 of the Energy Act require prior consent of the landowner and agreement on compensation before the development of energy infrastructure, requirements which the Respondent failed to satisfy. 4. The Appellant submits that the Authority wrongly declined to award special damagesamounting to Kshs. 3,346,309, representing the value of trees cut down and other losses suffered. It argues that EPRA did not consider the report and ignored the qualification of the author of the report. 5. The Appellant submits that the award of Kshs. 300,000 as general damages for trespasswas manifestly inadequate considering that the Respondent had unlawfully occupied the land since December 2021 and continued accessing it for maintenance of the electricity line. The Appellant contends that the trespass deprived him of the opportunity to subdivide and sell the property. He also argues that he was denied costs. 6. The Appellant therefore prays that the Tribunal allows the appeal, sets aside EPRA'sdetermination , grants an eviction order, awards the pleaded special damages of Kshs. 3,346,309, enhances the award of general damages to Kshs. 500,000, awards costs before both the Authority and the Tribunal, and grants such further relief as the Tribunal may deem just. **RESPONDENT’S SUBMISSIONS** 1. The Respondent opposes the appeal and submits that the Authority correctly determinedthe dispute, save for the order directing a joint independent valuation. It argues that the appeal should largely be dismissed, the order for a joint valuation vacated, and the award of general damages reduced. 2. The Respondent concedes that EPRA found that the electricity wayleave corridorunlawfully overlapped approximately 0.42 acres of the Appellant's 30.6-acre parcel of land. However, it submits that EPRA correctly declined to order the removal of the electricity line because it serves Chesimbulbul Primary School, and its removal would interrupt electricity supply to the school and undermine the public interest. Instead, the Authority appropriately directed the parties to negotiate a formal wayleave agreement under the Energy Act. The Respondent relies on the Tribunal's decision in Dickson Jokeyo Awuoth v Kenya Power & Lighting Company Ltd (EPA No. E020 of 2025), where the Tribunal declined to order the removal of electricity infrastructure on account of its importance as critical public infrastructure. 1. The Respondent submits that the Appellant failed to strictly prove the pleaded specialdamages of Kshs. 3,346,309. It argues that the agricultural specialist's report relied upon by the Appellant lacked supporting certificates and licences demonstrating the author's qualifications, thereby depriving it of evidential value. Equally, the Respondent's own property damage report did not satisfactorily explain the methodology used to arrive at its assessment. 2. The Respondent submits that although trespass was established, the award of Kshs.300,000 as general damages was excessive. It argues that EPRA failed to consider the unique circumstances of the case, including that only the wayleave corridor, and not the electricity conductors themselves, overlapped a relatively small portion of the Appellant's land. 3. The Respondent consequently prays that the Tribunal uphold EPRA's refusal to order theremoval of the electricity line, vacate the order directing a joint independent valuation, substitute the award of Kshs. 300,000 in general damages with Kshs. 100,000; and award the costs of the appeal to the Respondent. **ANALYSIS AND DETERMINATION** 1. The Tribunal has carefully considered the Memorandum of Appeal, the Record ofAppeal, the determination of EPRA, the respective written submissions of the parties, the authorities cited, and the applicable constitutional and statutory provisions. 2. On the part of the Respondent, the Tribunal did not consider the Respondent’s prayersfor the reduction of the general damages and vacation of the orders for setting aside joint valuation as the Respondent did not file an appeal or a cross appeal. As such, the only prayer that can be considered is dismissal of the appeal. 3. Having considered the record in its entirety, the Tribunal finds that the following issuesarise for determination: 4. Whether the Authority erred in declining to grant an eviction order against theRespondent. 5. Whether the Authority erred in directing that compensation be determined through ajoint independent valuation instead of determining the Appellant's claim for special damages. 6. Whether the award of Kshs. 300,000 as general damages for trespass was appropriate inthe circumstances. 7. Whether the Authority erred in declining to award costs to the Appellant. **(A) Whether the Authority erred in declining to grant an eviction order against the Respondent.** 1. There is no dispute that EPRA found that the Respondent unlawfully entered theAppellant's land without obtaining the requisite consent under the Energy Act. Having made that finding, the Authority nevertheless declined to order the removal of the electricity line. Instead, he directed the parties to negotiate a proper wayleave agreement in accordance with the provisions of the Energy Act, noting that the electricity line served Chesimbulbul Primary School and that its removal would interrupt electricity supply to the school and the surrounding community. 2. The Appellant submits that having unequivocally found that the Respondent hadunlawfully trespassed onto Land Parcel No. West Pokot/Kisaunet/65 without first obtaining the requisite consent under the Energy Act, EPRA ought to have granted an eviction order directing the removal of the electricity infrastructure from the suit property. According to the Appellant, once the Respondent's occupation was found to be unlawful, EPRA could not sanction the continued occupation of the Appellant's land on account of public convenience. 3. Looking at the determination of the Authority, it is important to consider what theTribunal can do sitting under its appellate jurisdiction. This requires to loo at the reasoning of EPRA in reaching his conclusion and simply not because that the Tribunal could have arrived at a different conclusion. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated: *“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”* 4. Additionally, in the case of Peters vs Sunday Post Limited [1958] EA 424, court thereinstated as follows: *“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”* 1. Upon reviewing the record, the Tribunal is not persuaded that the Authority exercisedits discretion improperly. On the contrary, the record demonstrates that it carefully balanced the competing interests before it. On one hand was the Appellant's proprietary right, which had been infringed by the Respondent's unlawful entry. On the other hand was the public interest in maintaining uninterrupted electricity supply to Chesimbulbul Primary School, a public institution, and to the consumers served by the existing electricity infrastructure. 2. The Tribunal further notes that the portion affected by the wayleave corridor measuresapproximately 0.42 acres out of the Appellant's entire parcel measuring 30.6 acres. While any unlawful entry onto private property is not to be condoned, which EPRA considered, He considered that parties negotiating a wayleave agreement was a more practical approach. This did not validate the unlawful conduct of the Respondent, the Authority, in its own wisdom preserved the Appellant's entitlement to compensation while at the same time avoiding disruption of an existing electricity supply serving a public institution. Accordingly, this Tribunal finds no basis upon which to interfere with EPRA's decision on eviction. **(B) Whether the Authority erred in directing that compensation be determined through a joint independent valuation instead of determining the Appellant's claim for special damages.** 1. The Appellant contends that the Authority erred in declining to award the pleadedspecial damages of Kshs. 3,346,309 and instead directing that compensation for the affected land be determined through a joint independent valuation. It is submitted that the valuation report produced by the Appellant was prepared by a qualified Agricultural Specialist whose academic qualifications were disclosed in the report, and that EPRA ought to have adopted the report and awarded the special damages as pleaded. 2. The Respondent, on the other hand, submits that the claim for special damages was notproved to the required legal standard. It argues that the valuation report relied upon by the Appellant lacked supporting documentary proof of the alleged expert's professional qualifications and licences and therefore failed to satisfy the evidentiary requirements governing expert opinion. The Respondent further submits that EPRA ought to have dismissed the claim for special damages altogether instead of directing a joint independent valuation, since such a remedy had not been sought by either party. 3. It is trite law that special damages must not only be specifically pleaded but must alsobe strictly proved. The burden of proving the quantum of the alleged loss rested squarely upon the Appellant. In Hahn vs. Singh [1985] KLR 716, the Court of Appeal held that special damages must not only be specifically claimed but also strictly proved. 4. From the record, the Authority found that the valuation report relied upon by theAppellant did not provide sufficient evidential basis upon which the claimed special damages could be awarded. The report was not accompanied by the necessary documentary proof establishing the credentials of its maker as an expert, nor did it satisfy the evidentiary threshold required for expert opinion under the law of evidence. Consequently, the Authority was not satisfied that the claim for special damages had been proved. 5. It is important to recognize that the Authority was entitled to evaluate the weight andprobative value of the evidence presented before it. Once it found that the Appellant had failed to strictly prove special damages, the law afforded it the option of declining that particular relief. Indeed, had EPRA dismissed the prayer for special damages outright, such a decision would have been supported by the evidence on record and the settled principles governing proof of special damages. 6. Although the Authority proceeded to direct that compensation be determined through ajoint independent valuation, the Tribunal finds that the Appellant cannot derive any grievance from that direction. If anything, the direction afforded the parties an opportunity to ascertain compensation through a neutral and independent process, notwithstanding the deficiencies in the evidence presented before EPRA. The Tribunal is therefore unable to find that EPRA committed any error in declining to award the special damages sought by the Appellant. Accordingly, the Tribunal finds no basis for interfering with the finding. **(C) Whether the award of Kshs. 300,000 as general damages for trespass was appropriate in the circumstances.** 1. In assessing damages, EPRA relied on the decision in John Kiragu Kimani v RuralElectrification Authority (Murang'a ELC No. 24 of 2017), where the court awarded general damages for trespass arising from the unlawful construction of electricity infrastructure. The Authority undertook a comparative assessment between the facts of that case and those before it. In doing so, it considered the duration of the trespass, the nature of the infringement, and the extent of the affected land before concluding that an award of Kshs. 300,000 constituted fair and reasonable compensation. 1. This Tribunal is alive to the settled principles governing appellate interference withawards of damages. An appellate court will not disturb an award merely because it would have been awarded a different sum. Interference is only justified where it is shown that the trial court or tribunal acted on a wrong principle of law, took into account irrelevant factors, failed to consider relevant factors, or arrived at an award that is so inordinately high or so inordinately low as to represent an entirely erroneous estimate of the damage suffered. On the case of Stephen Mutisya Muumbi V Peter Mutuku Katuli [2008] eKLR, the court relied on the case of Idi Ayub Omari Shabani v City Council of Nairobi [1985] KECA 48 (KLR), where the court of appeal stated as follows: *“This Court will not interfere with the question of damages awarded by the trial court unless it is satisfied that the award was based on some wrong principle or is so manifestly excessive or inadequate that a wrong principle may be unferred”* 1. The Tribunal is therefore satisfied that the award of Kshs. 300,000 represented a properexercise of discretion. It cannot be said that the award is either inordinately low, as contended by the Appellant, or inordinately high, as argued by the Respondent. There is consequently no legal basis upon which this Tribunal, sitting as an appellate court, should interfere with the quantum awarded. **(D) Whether the Authority erred in declining to award costs to the Appellant.** 1. The law on costs is well settled. Under section 27 of the Civil Procedure Act, costs are inthe discretion of the court or tribunal. However, the general rule is that costs follow the event, unless the court, for good reason, orders otherwise. While a court is at liberty to depart from the general rule, such departure must be founded on sound judicial reasons and not exercised arbitrarily. The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR stated as follows: *”Whereas the court had discretion when awarding costs, that discretion had to be exercised judicially. The first point of reference, with respect to the exercise of discretion was the guiding principles provided under the law. In matters of costs, the general rule was that costs follow the event unless the court was satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the court decided not to follow the general principle, the court was enjoined to give reasons for not doing so.”* 1. The above case affirmed that although costs remain discretionary, the successful partyshould ordinarily be compensated for the expense of litigation unless there exist circumstances justifying a contrary order. The Tribunal has examined the Authority's determination and notes that the Appellant substantially succeeded in his complaint before EPRA. The Authority expressly found that the Respondent had unlawfully trespassed onto the Appellant's land without obtaining the requisite consent under the Energy Act. That finding constituted the central issue in dispute and was resolved in favour of the Appellant. 2. The Tribunal appreciates that in some disputes, particularly those involving continuingcommercial or familial relationships, a court or tribunal may decline to award costs in order to promote reconciliation or preserve an ongoing relationship between the parties. However, it is our view that the present dispute does not fall within that category. It concerns a statutory licensee exercising significant public power against an individual landowner. There exists an evident imbalance in bargaining power between the parties. In such circumstances, declining to award costs in the name of promoting reconciliation would not advance the interests of justice but would instead leave the successful litigant to bear the financial burden of enforcing rights that had already been infringed. 3. In the absence of any identifiable reason for departing from the general principle thatcosts follow the event, the Tribunal finds that the Authority erred in declining to award costs to the Appellant. Accordingly, the fourth ground of appeal succeeds. The Tribunal sets aside that part of EPRA's determination declining to award costs and substitutes it with an order that the Appellant shall have the costs of the proceedings before the Authority. The Appellant shall also have the costs of this appeal, those being the only aspect upon which the appeal has substantially succeeded. **DISPOSITION** 1. Upon consideration of the pleadings in this application, the Tribunal makes the followingdetermination: 2. The appeal is hereby partially allowed on the fourth ground on costs. 3. Grounds 1, 2 and 3 of the Appeal are hereby dismissed. 4. The Appellant is awarded costs of the appeal. Dated and delivered at Nairobi, this 2nd of July 2026. ……………………..…… Ms. Doris 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: 2026-07-03 08:24:15 |