Kenya Power ordered to pay man Sh200,000 after cutting his trees

The Court of Appeal has ordered Kenya Power to pay Sh213,700 to a landowner after the utility company unlawfully trespassed and cut his trees to erect an electricity post on his land.

In a judgment delivered in Nakuru, a three-judge bench reinstated a trial court decision that had awarded Joseph Ng’ang’a Sh200,000 in general damages after Kenya Power erected a power distribution post on his parcel of land.

The dispute dates back to 2008 when Ng’ang’a filed a case at the Nyahururu Principal Magistrate’s Court claiming that Kenya Power entered his land in early 2007 without his knowledge, consent or authority and erected an electricity post and supply lines.

He told the court that in the process, the company destroyed trees, fencing posts and barbed wire on his land and interfered with his use of the property, prompting him to seek compensation for trespass and damages.

"The appellant (Nga'ng'a) lamented that the post was erected without his consent. For that reason, he prayed for compensation assessed as follows: 93 eucalyptus trees each valued at Sh4,650 and three wattle trees each valued at Sh880," the judgement states.

In a judgment delivered on February 27, 2010, the trial magistrate found that Ng’ang’a had proved his case on a balance of probabilities and awarded him Sh213,700, including Sh200,000 as general damages for trespass.

Kenya Power challenged the decision at the Environment and Land Court, which in 2018 allowed the appeal and set aside the Sh200,000 general damages award.

In its ruling, the court held that the trial magistrate had erred on the evidence and that there was no proof of profits or economic loss.

"With due respect, we do not find any legal or justifiable basis why the learned judge referred to mesne profits when the trial court categorically awarded general damages. We therefore find that the appellant was correctly entitled to an award of general damages for trespass," the bench stated.

Additionally, the appellate judges contended that it was not disputed that Ng’ang’a was the registered proprietor of the land and that Kenya Power had erected an electricity post on the property without his consent, which amounted to trespass.

They further noted that the trial magistrate’s reference to “posts” instead of a single post was a minor issue that did not go to the root of the dispute and could not justify setting aside the award of general damages.

The court faulted the ELC judge for treating the award as mesne profits, noting that the trial court had clearly awarded general damages for trespass and not mesne profits.

According to the judges, trespass to land is actionable once proved and a claimant is entitled to general damages even without demonstrating specific financial loss.

The court reiterated that once trespass is established, the affected party is not required to prove actual damage or loss to be awarded compensation, as damages are granted depending on the circumstances of each case.

The judges also rejected Kenya Power’s argument that the appeal did not meet the legal threshold under Section 72(1) of the Civil Procedure Act, clarifying that the Court of Appeal derives its jurisdiction from the Appellate Jurisdiction Act and the Court of Appeal Rules, not the Civil Procedure Act.

They emphasised that ELC had misapprehended the evidence and arrived at an erroneous decision by setting aside the trial court’s award.

“We do not hesitate to find that the present appeal is merited,” the judges ruled.

The appellate court consequently set aside the ELC judgment delivered on January 18, 2018.

It substituted it with the trial court’s decision by reinstating the Sh200,000 general damages award in full plus Sh13,700 in special damages.

The court also ordered that Ng’ang’a be paid the costs of the appeal as well as the costs incurred in the Environment and Land Court.