Court dismisses trespass petition against Kenya Power

The Environment and Land Court in Nakuru has dismissed a petition filed by a landowner accusing the Kenya Power and Lighting Company of unlawful occupation of private property. 

Catherine Gathigia Kiruki had moved to court seeking compensation and a declaration of trespass, claiming the utility firm had violated her rights by maintaining power lines on her land in Molo without her consent or formal agreement.

Justice Millicent Odeny found that the petitioner failed to provide specific evidence of how they were infringed.

Kiruki, who became the registered owner on October 27, 2015, argued that the power company had trespassed onto her land-Kenjoketty Settlement Scheme/111 in Molo- in the mid-1990s, erected poles and cables without consultation.

She further contended that the utility firm had ignored her numerous attempts to negotiate a wayleave agreement or provide compensation for the 11years she had been the registered owner of the property.

Kiruki said the respondent’s conduct "amounts to unlawful administrative action trespass and breach of her right to property and fair treatment by a public body".

However, the utility company asserted that the power lines were not a recent trespass but a long-standing public utility. 

Emmanuel Ochieng Ouma, a wayleave officer for the respondent, testified that the infrastructure was constructed in 1994 and officially commissioned in March 1997 to serve settlers in the area. 

"Ouma deponed that the respondent applied for the green card which indicated that the petitioner had acquired possession and ownership of the suit land on October 27, 2015, eighteen years after the power line had already been constructed and was operational," court documents show.

"It was Ouma’s disposition that at the time of construction of the power line in 1994, and commissioning in 1997, land parcel No Kenjoketty Settlement Scheme/111 did not exist, as it was only created following a subdivision on March, 18, 2015."

 In a replying affidavit, he argued that neither Kiruki nor the original settlement scheme had ever lodged a complaint until the petition was filed.

The company further accused Kiruki of concealing the date she acquired the land to make the power line appear as a recent trespass.

In a judgment delivered on May 4, Justice Odeny found that the petition failed to meet the necessary legal thresholds for a constitutional claim. 

“The petitioner listed Articles 10, 40 and 47 of the constitution but did not go further to precisely state how the respondent has violated these rights,” the judge observed. 

“It is not enough for the petitioner to just list constitutional provisions without demonstrating how they were infringed.”

Regarding the claim of trespass, the court observed that the infrastructure was already in place when the petitioner took ownership. 

“The petitioner further claimed that has been on the land for a period of 11 years, which has been calculated, from the time the petitioner acquired the land in 2015. The respondent could not have negotiated with the petitioner, as she was not an owner in 1994 when the power lines were constructed. The petitioner’s land is a result of a subdivision therefore; it did not exist at the time of the construction of the power lines.”

The judge concluded that Kiruki had failed to prove any infringement of her rights and dismissed the petition with costs.