[2018] KECA 750 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, KIAGE & MURGOR, JJ.A)

CIVIL APPEAL NO. 14 OF 2011

BETWEEN

KENYA POWER & LIGHTING

COMPANY LIMITED………………………………....……... APPELLANT

VERSUS

PHILLIP A.M. KIMONDIU………………..…….……........RESPONDENT

(Being an appeal from the Judgment of the High Court of Kenya at Nairobi (Honourable Mr. Justice A.O. Muchelule dated and delivered on 28thOctober, 2010)

in

ELC NO. 1034 OF 2011

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JUDGMENT OF THE COURT

Kenya Power and Lighting Company Limited, the appellantis a limited liability Company duly authorized as a licensee to undertake supply and distribution of electrical energy in the Republic of Kenya. In this appeal, the appellant is dissatisfied with the High Court’s award of damages of Kshs 5,565,000 made in favour of Phillip A.M. Kimondu, the respondent, for reasons that it was excessive and without basis.

The respondent is the proprietor of parcel of land measuring 7. 1 acres known as Plot number 6-106 (the Plot) that was carved out of Land Reference No. 10967 registered in the name of Muka Mukuu Farmers’ Co-operative Society Limited (the Society) situated within Machakos District.

On 22nd November 1999, the respondent wrote to the appellant to demand Kshs.19, 187,000 as compensation for the grant of a way leave through his land. The appellant declined to enter into negotiations with the respondent and instead, on the strength of an agreement with the Society dated 23rd December 2000 wherein the Society granted it a wayleave through Land Reference No. 10967, it commenced laying a 220KV power distribution line from Kiambere Dam to Dandora in Nairobi to boost the capacity of electric power on the national grid. In consideration, the appellant agreed to pay compensation to the Society as follows:

i) Buildings and other structures Kshs 790,000

ii) Crops and vegetation Kshs 2,140/- (Paid)

ii) Consideration for way leave Kshs 185,000

TotalKshs 977,140

The respondent was aggrieved, and sought to prevent the appellant from laying the power transmission lines on his land. As a consequence, the appellant sought an injunction to restrain the respondent from interfering with the laying of the transmission lines over the Plot carved out of the Land Reference No 10967.

In a defence and counterclaim, the respondent asserted that he was not a party to the Society’s agreement which allowed the appellant to lay an electric supply line through the Plot. It was his case that sometime in 1999, the appellant had wrongfully entered upon his land to lay power transmission lines without his permission, consent or authority; that despite his pleas for the appellant to cease its unlawful trespass, it continued with laying of the power lines asserting that its agreement with the Society, permitted it so to do. As a consequence, the respondent claimed loss and damage for the trespass, the particulars of which we will consider in more detail below.

Consequently, the respondent sought a declaration that the appellant was not entitled to enter or use his land for laying power lines in or over it without full, adequate and reasonable compensation; an injunction to restrain the appellant from entering or using his land and for an order to remove any power lines that may have been erected or laid; damages, special damages of Kshs. 19,187,000, costs and interest.

In the course of the proceedings, the appellant conceded liability at 100% in favour of the respondent, and therefore, what remained was for the trial court to assess the damages payable to him. In a judgment delivered on 28th October 2010, the trial court awarded him damages in the following terms:-

a. Value of land for 7. 1 acres in 2010 Kshs. 1,065,000

b. For developments, agriculture and irrigation Kshs. 4,000,000

c. Cost of Movement Kshs. 500,000

Total award Kshs. 5,565,000

Dissatisfied, the appellant filed an appeal where the grounds specified were that, the learned Judge erred in awarding compensation that was not proportionate to the total acreage of the respondent’s land; awarding inordinately excessive damages for irrigation and agricultural works without a basis or specific proof; in finding that the parcel of land was rendered useless by the way the power lines had traversed across it; in failing to apportion compensation to reflect the 40% wayleave trace, and in awarding costs to the respondent.

In a cross appeal, the respondent also expressed dissatisfaction with the decision on the basis that, the learned judge wrongly assessed the quantum of damages, and in so doing, awarded a sum that was inordinately low; that the learned judge failed to apply the valuation report by Mwaka Musau Consultants or values comparable to adjacent land, or to consider its irrigation capabilities and superior soils so as to arrive at the true value of the Plot; that the learned judge failed to consider the cross-appellant/respondent’s submissions on compensation for loss of user for irrigation project, loss of land, trespass and personal injury which cumulatively should not be less than Kshs. 22 million, and in failing to consider the uncontested professional reports for personal injury and to award the relevant damages.

When the matter came before this Court, learned Counsel Ms. Atuya appeared for the appellant, while learned counsel Mr. R. Mutiso represented the respondent. Both parties indicated that they would rely entirely on their respective written submissions, and requested us to proceed to render a decision.

The appellant submitted that in assessing damages, the learned judge wrongly awarded compensation that was not proportionate to the acreage affected by the power lines; that what was affected was 40% of the entire land, which did not alienate the respondent from his land, but merely restricted him from growing trees/crops which exceed 12 feet from the ground or putting up structures which would constitute a hazard to the power lines.

It was further argued that the claim for special damages of Kshs. 19,187,000 for irrigation works and agricultural damage was not specifically pleaded or proved. The appellant relied upon Civil Appeal 167 of 2008, KPLC vs Diana Achieng Ogunyowhich citedSavannah Development Company Limited vs Posts and Telecommunications employees, Housing Co-operative Limited,Civil Appeal No 160 of 1991 (UR)to support the proposition that special damages must be specifically pleaded and proved. It was further emphasized that an intention to commence an irrigation project was not sufficient to warrant the award of damages of Kshs. 4,000,000. On the claim for mental suffering, it was submitted that it was neither quantified nor proved.

In response the respondent complained that, the learned judge’s award was too low as the land parcel was affected by the power transmission lines that had been laid, and which took away his right of ownership, thereby rendering his land unusable and uninhabitable.

On the award for irrigation, it was argued that the respondent was prevented from commencing his irrigation project following the illegal trespass upon his land; that the valuation reports clearly showed that there were plans to commence an irrigation project, which ought to have been the basis upon which the court should have assessed and awarded damages. The respondent further complained that the medical reports produced by the three medical experts were not considered so as to award damages for mental stress and suffering.

This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand.

This was aptly stated in the cases of Selle vs Associated Motor Boat Company Ltd [1968] EA 123 andPeters Vs Sunday Post Limited [1985] EA 424where in the latter case, the court therein rendered itself 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…”

We also appreciate that, assessment of damages is an exercise of discretion by the trial court, and our duty as an appellate court is to exercise restraint in seeking to impose our own assessment of damages over the trial court’s assessment, unless it was excessively high or oppressively low. In Kenya Bus Services & Another v Frederick Mayende [1991] 2 KAR 232this Court held that:-

“The principles on which an appellate court will interfere with the trial judge’s assessment of damages are well settled in the Court of Appeal.

The Court will only interfere where an error of principle by the trial judge is shown, or where the damages awarded are so high or so low that they must be wholly erroneous estimate and an error of principle must be inferred.”

We have considered the grounds of appeal, the cross appeal and the parties’ respective written submissions, and having the aforesaid principles foremost in our minds, the question that lends itself for determination is whether or not the learned judge was justified in awarding the respondent Kshs. 5,565,000. To address this issue the following questions require to be determined.

a. Whether the assessment and award of the damages was proper in light of the valuation report by Metrocosmo Valuers Limited;

b. Whether the assessment and award of damages for irrigation was too high or too low;

c. Whether the respondent and his family suffered adverse health implications, and if so whether the respondent is entitled to compensation for mental stress and suffering.

d. Whether the respondent was entitled to compensation for eviction from the suit premises.

At the outset, it is observed that the instant case concerns the trespass by the appellant onto the respondent’s land. The appellant has in this case admitted liability for trespass, after laying electric power transmission lines across the respondent’s land without his authority or consent. In this regard, it is trite that the measure of damages for a right of way or for a wayleave, is the value by which the land value diminished, and in a case where the claimant has been deprived of his land, the measure of damages is the value of his interest in the land.

In the instant case, the learned judge awarded damages on the basis that the respondent had been deprived of his land, and was therefore entitled to the value of the land. To arrive at a land valuation he relied on the cases of John Kilili Kilonzo vs Kenya Power & Lighting Company, HCCC No. 1018/04 (Consolidated),where the valuation of land in the same locality as the respondent’s was estimated to be about Kshs. 130,000 per acre in 2009. The learned judge also took into account the present rates of land per acre and awarded Kshs. 150,000 an acre in 2010 for 7. 1 acres.

In their submissions, the appellant conceded that the learned judge’s award of Kshs. 150,000 per acre was proper, but argued that the award of compensation was excessive as it should not have been calculated on 7. 1 acres but on the 2. 85 acres affected by the electric lines trace area.

It is clear from the judgment that the learned judge relied on the valuation report by Metrocosmo Valuers Limited dated 28th November 2003 whom the appellant commissioned. Of relevance it reads in part that;

“The parcel is under 2 No. high voltage power lines which occupies 40% of the parcel. In addition the way the lines have traversed the parcel renders it almost useless for any other purpose.”

We therefore recommend that the whole parcel should be surrendered to K.P.L.C and the owner relocated elsewhere and be compensated for the cost of movement to the new site.”

Given this observation, the learned judge concluded that the location of the overhead power lines on the Plot, and the manner of transit through it rendered it virtually useless for residential, agricultural or other activities and was tantamount to the deprivation of the respondent of the use, benefit and enjoyment of his land. It is for this reason, and in our view rightly so, that the learned judge included the entire 7. 1 acres in the computation of damages for the land value.

Conversely, the respondent complained that the trial court’s valuation of the land was too low, as the learned judge did not take into account the valuation report by Mwaka Musau Consultant which valued the Plot at Kshs. 3,404,000 in 2003, or the fact that its value had appreciated by the time the court rendered its decision.

We are inclined to disagree that the land value of Kshs. 150,000 was too low. This is because, the learned judge not only based the award on land values specified in John Kilili Kilonzo vs Kenya Power & Lighting Company (supra), but also recognized that the land value had appreciated, whereupon he included an additional sum of Kshs. 20,000, bringing the land value to Kshs. 150,000. Having made provision for appreciation of the land value at the time of rendering the award, we find that the learned judge rightly computed damages in respect of the Plot, and we find no reason to interfere with that decision.

The next issue in contention was the award for developments, including agriculture and irrigation where the trial court awarded a sum of Kshs. 4,000,000. In arriving at this award the learned judge stated thus;

“For loss of irrigation project Kshs. 4,000,000 was sought. The Defendant asked for three times the figure to cover 3 years of compensation. He then said he and his family members had suffered stress related illness owing to the trespass and asked for Kshs. 4,000,000 on that limb. The total is Kshs. 22,808,000”.

The appellant’s argument is that despite the prayer for special damages in the counterclaim, the respondent had not provided any proof of the sums claimed to warrant such award, and that in any event, a special damages claim for loss of profit was unattainable as the irrigation project had not commenced, by the time of the trespass, and no profits could be said to have accrued to the respondent.

When we consider the award in the context of the appellant’s complaint, what is required of us, in the first instance, is to determine whether the award of Kshs. 4,000,000 was one of special or general damages.

In the case of Stroms Bruks Aktie Bolag vs Hutchison [1905] AC 515 Lord MacNaughten sought to distinguish between the nature of special and general damages and explained that;

“‘General damages’… are such as the law will presume to be the direct natural and probable consequence of the action complained of. ‘Special damages’ on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and, therefore must be claimed specifically and proved strictly.”

In other words, to sustain a claim for general damages, the respondent must show that the losses that ensued were a direct consequence of the appellant’s trespass, while in the case of special damages, the respondent would be required to show proof of actual loss on matters that cannot be said to be a natural or direct consequence of the appellant’s trespass.

In the respondent’s Defence and counterclaim, loss and damage were particularized as;

i) Loss of use and value of land by the plaintiff’s invasion thereof.

ii) Loss due to possible demolition of the homestead and cost of reconstruction thereof at a new locality.

iii)Loss through treading and removal of crops and vegetation.

iv)Loss of quiet enjoyment and property.

v) Loss through the exposure to health hazards due to environment pollution and change of locality of home.

vi) Loss through constant disturbances and interruptions of dependant’s and his family’s way of life, of his commercial and domestic activities.

vii)Loss of anticipated profits through sustained suspension of irrigation projects.

Whilst the orders sought were for damages and special damages in the sum of Kshs 19,187,000.

From the particulars of loss, it is apparent that central to the claim for compensation for irrigation, was the “Loss of anticipated profits through sustained suspension of irrigation projects.”

Yet despite this description of loss, the respondent’s submissions in the High Court were that;

“The Defendant’s land parcel was being utilized for irrigation. This has not been possible since the Plaintiff’s trespass started. A valuation of Loss Report by Jumbo Agrovet valued the Defendant’s loss at Kshs. 4,294,875 per year. To date to well over Kshs. 40,294,875 i.e (Kshs. 4,294,875 x10 years).(emphasis ours)

Whilst in the cross appeal in this Court, the Appellant/Respondent’s Response Submissions stated that;

“ASSESING AND AWARDING DAMAGES FOR IRRIGATION

The Special damages awarded took into consideration that the land could not be used for the intended purposes. The Appellant/cross-respondents submissions based their opposition on the words ‘intention to’ are outlandish …” (emphasis ours)

It is evident from the above that, on the one hand, the respondent’s submissions concerned a claim for loss of profit for an ongoing irrigation project. And on the other, a claim for loss of user profits for an intended project. But besides oscillating between an existing and intended user, and the specific reference to a special damages made in the counterclaim, the totality of the evidence, including the valuations and the irrigation reports, are indicative of a planned irrigation project, a fact that the appellant also concedes. Indeed, since the project was yet to commence, support for a claim of special damages would be nonexistent, so that, an assessment founded on special damages was clearly, inconceivable. Therefore, a claim for special damages was inapplicable to the circumstances of this case, and the inevitable conclusion is that the learned judge’s award was for general damages for loss of user profit.

Having so found, we turn to consider whether the learned judge rightly awarded the damages for loss of use or loss of user profits.

At this juncture that it will be observed that the case of U.Y B. Ltd vs British Railways Board (2001) 81 P. and C.R. DG19 CA,confirmed that loss of user profits can also be claimed. There, the claim involved the tort of nuisance where water had seeped from the lessor’s property into the lessee’s premises making it impossible for use for the latter’s projected business. They were awarded lost profits for a limited period, as they did not seek to relocate their business to alternative premises.

The respondent’s claim is for loss of user profits for an intended irrigation project which he was precluded from undertaking by reason of the trespass of the appellant’s extant overhead power lines. Support for this was to be found in the valuation report of Mwaka Musau Consultants undertaken immediately after the appellant’s intrusion that indicated that,“There is an excavated foundation for a further extension of the main house a project which has been stalled together with irrigation project for the last four years.”It therefore follows that the inability to undertake the project was as a direct and natural consequence of interference in the Plot, which was attributed to the appellant, and would as a consequence entitle the respondent to damages for loss of use of the Plot.

That said, was the assessment of damages based on the relevant factors and if so, did the learned judge arrive at the correct quantum of damages? Given the uncertainty in assessment of damages of this nature, courts are required to be guided by the principle of awarding damages that are ‘fair just and reasonable”. As observed by Lord Scarman in the case of Pickett vs British Rail Engineering Ltd [1980] AC 136 at 168;

“All that the court can do is make an award of fair compensation. Inevitably this means a flexible judicial tariff, which judges will use as a starting point in each individual case, but never in itself decisive in any case. The judge … must make an assessment which in the particular case he thinks fair: and, if his assessment be based on correct principle and correct understanding of the facts, it is not to be challenged unless it can be demonstrated to be wholly erroneous.”

In Henry Hidaya Ilanga v Manyema Manyoka [1961] EA 713, the predecessor of this Court applied the rule laid down by the Privy Council in Nance vs British Columbia Electric Railway Co Ltd (4), (1951) AC page 613when discussing the parameters to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge. It observed that:-

“The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at the first instance. Even if the tribunal of first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

In this case, the learned judge relied on an elaborate report prepared by Francis M. Masoo, Agriculture Manager, Jumbo Agrovet dated 18th May 2004 to award damages for loss of user profits, wherein loss of user profits was computed as Kshs.4, 294,875 per year, and Kshs.16, 891,500 for 4 years. After considering the claim, the learned judge limited the period of computation to one year, and in so doing exercised his discretion to award Kshs. 4,000,000 as damages for loss of user profit. We can find nothing in the manner of assessment that would point to a misdirection on the learned judge’s part.

Accordingly, and in view of the above, we are satisfied that the awards both for land valuation, and the intended irrigation project were neither excessively high nor oppressively low. We find that the learned judge took into account relevant factors, and that the exercise of his discretion was reasonable, and justifiable having regard to all the circumstances of this particular case, and we therefore have no reason to interfere with the damages assessed in favour of the respondent.

We now turn to whether the court ought to have awarded damages for mental distress suffered by the respondent and his family. In addressing this issue, we begin by observing that, a claim for mental distress does not in and of itself result in sufficient damage to ground an action. Suffice it to say, that there have been cases of trespass or nuisance where awards for mental distress or anxiety have been allowed. See Mc Gregor on Damages, Sweet & Maxwell, Eighteenth Edition, page 61.

In the instant case, proof of mental distress was to be found in the opinions of three professionals namely, Dr. Makanyego, Dr. Omondi Oyoo and Dr. J.O. Jowi which demonstrated that the respondent suffered mental stress attributable to the intrusion of the electric power lines. The learned judge did not specifically award any damages under this head, nor state the reason for declining to do so. In view of the circumstances, the facts and the mental stress sustained from the intrusions by the respondent, we consider that an award of damages for mental stress was necessary. As such, we would award Kshs. 100,000 as nominal damages under this head.

In so far as the cost of eviction from the plot is concerned, the learned judge made an award of Kshs. 500,000 as cost of movement to compensate the respondent. As there was no specific opposition to this one way or the other by the parties, we do not consider it necessary to interfere with this award.

In the result, the appeal is without merit and is hereby dismissed. The respondent’s cross appeal is partially allowed to the extent of the award of nominal damages of Kshs. 100,000 for mental stress and suffering. The respondent shall have the costs in this Court and in the High Court.

It is so ordered.

Dated and Delivered at Nairobi this 2ndday of March, 2018.

R.N. NAMBUYE

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JUDGE OF APPEAL

P.O. KIAGE

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JUDGE OF APPEAL

A.K. MURGOR

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JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR