Massive fines expose power firms’ breach of land rights

Maximising electricity distribution and connection is no doubt critical in bolstering the country’s socio-economic growth.

As such power utilities including Kenya Power (KPLC), Kenya Electricity Transmission Company (Ketraco) and Rural Electrification Authority (REA) have kept busy in the past decade trying to reach users in most parts of the country.

For instance, KPLC, which is tasked with hooking households to the national power grid, had by June connected 494,374 families under a five-year subsidised electricity project launched in September 2015. On its part, REA added 56,596 new customers to the grid in 2019 and Ketraco thousands of kilometres of new transmission lines.

However, in a bid to connect as many Kenyans as possible to the national grid, the power firms has in some instances, overlooked laid down rules and procedures on property rights leading to costly court fines which burden the taxpayer.

Picture this; you have planted trees which are mature and expect to make a tidy sum by selling them. Or perhaps, you love nature and have planted a number of trees in your compound.

But one day you arrive home to find the trees cut down and no one told you about the impending destruction. You later find out that the trees were destroyed by KPLC workers, as they sought to supply a neighbour with electricity.

Several Kenyans refused to let such actions by rogue KPLC employees go scot-free. In one of the judgements rendered recently, Justice Christine Ochieng said their acts were illegal.

Section 171 and 173 of the Energy Act expressly require utility firms to seek consent from owners of the land before entering and laying cables or electric poles, petroleum or gas pipelines, or drilling exploratory wells.

Even in instances where a private land owner cannot be traced immediately, the law demands that he or she be granted a 15 days’ notice through appropriate mass channels including advertisement in at least two national newspapers or a radio station that covers the local area for a period of two weeks.

While awarding George Joseph Kang’ethe and Ella Karwitha Sh40 million for trespassing into their land in Ngong, Kajiado County, the judge said it was wrong for the company to lay the cables without seeking the couple’s consent.

The couple sued the company saying its workers entered the parcel, cut down trees and put up 10 concrete poles. And since then, they have been unable to use about two acres of their land, or lease out some houses they had put up, because of the power line. They could also not sell or develop it.

The couple said they continue to incur losses yet the area is a prime place, where an acre of land fetches good money. Mr Kang’ethe told the court that the high voltage cables were erected to supply power to Magadi Soda Company in 2013.

He said KPLC did not issue them with any notice or request their permission to enter the land. The move, he said, had caused them permanent damage.

KPLC denied interfering with the land and challenged the claim of compensation for the felling of trees, arguing that it is a specific damage and ought to have been proved by documentation such as a certificate Kenya Forest Service.

Further, the company said, damages cannot be awarded for the felling of trees where the same has not been specifically proved.

Justice Ochieng said it was not disputed that electricity posts, high voltage cables and power lines have been erected in the land. She noted that what was in dispute was that KPLC never sought consent from the couple before erecting the power lines. She, however declined to compensate them for the destruction of the trees saying the couple failed to prove the claim.

She noted that they could not use the houses they had constructed and awarded them Sh12 million. And for the loss of use of the two acres, the judge awarded them Sh24 million plus Sh4 million for damages.

Earlier in June, Justice Ochieng awarded Ms Eunice Nkirote Sh14 million for general damages and ‘continuous trespass’ after she found that KPLC entered her land without consent and erected power lines in her farm.

Although the power lines were erected in the middle of her maize farm in Kajiado, the court said Sh12 million was adequate compensation because she could still utilise the other acre for maize production.

Ms Nkirote explained that KPLC entered her farm in 2013, without her permission, cut down trees, and erected high concrete poles and put high voltage wires thereon.

She complained that she cannot use the land because of the high voltage wires nor sell the parcel or build on it.

KPLC in reply said she was absent when the electricity poles and power lines were being erected. The power company urged the court to award her general damages of Sh100,000 for trespass, saying it was adequate.

In 2018, Justice John Mutungi ordered KPLC to re-route the power line running through Mr Samuel Motari Nyambati’s land in Boitangare, Kisii County, within two months.

This was after the farmer and KPLC agreed on a deal to remove the poles erected in the middle of his farm and place them on the boundaries.

The judge said it was dishonest for KPLC to say that the laying of the lines will not interfere with farming activities or to suggest that Mr Nyambati will not suffer prejudice.

Mr Nyambati sued KPLC saying its workers entered his homestead and without consent, erected the power lines, which were for the supply of electricity to Nyamagwa Secondary school. Mr Nyambati said he practiced subsistence farming and the power lines had rendered his land unusable for agriculture.

He also complained that he could not build houses on the portion through which the power line was constructed and therefore his right of use of his land was restricted.

While erecting the power lines, the workers allegedly destroyed his food crops. He initially sued KPLC and was paid Sh42,000.

The power utility company defended itself saying it was at the time implementing the Rural Electrification Project, which was intended to give the local populace access to electricity.

The company further stated that persons through whose land the power lines passed were compensated and Mr Nyambati was one of them.

The court noted that the power line was passing right in the middle of Mr Nyambati’s land and ordered the relocation.

“My view is that the defendant (KPLC) acted without due care and diligence when they erected the power line running through the middle of the plaintiff’s land parcel and they ought to bear the cost of having the power line re-routed to run along the boundary of the plaintiff’s land parcel,” Justice Mutungi said.

In yet another case, Justice Lucy Waithaka in 2016 directed KPLC to pay Mr Obadiah Macharia Sh100,000 for general damages after she found that the company had entered his land in Gathukeine, without his consent and erected a power line.

Although Mr Macharia claimed that KPLC workers cut down his 12 mature trees, the court said he should have provided a report showing the value of the trees, for the judge to assess the amount to be paid for the loss.

The court also noted that KPLC had already re-routed the power line. “Since the offending power line has been removed, I find that general damages of Sh100,000 will adequately compensate the plaintiff for the wrongful entry to his land and the infractions carried thereon,” the judge said.

Mr John Kiragu Kimani also sued REA and in 2018, Justice J.G Kemei awarded him Sh1.3 million for the destruction of his trees and trespass.

He told the court in Nyeri that REA employees entered his farm in 2009 and cut down 300 mature trees, to erect high voltage power lines, without his consent.

The high voltage power-line supplies power along the Kangema-Tuthu high voltage line project. He informed the court that by then he had not signed any wayleave agreement.

A REA official testified that in 2009 it commenced the Kangema/Kanyenyaini Tuthu project to supply power to Tuthu market. The survey, the court heard, identified the route through various private land, one of which belonged to Mr Kimnai.

The official admitted that it was true some 300 trees were felled and using guidelines from the ministry, approved compensation of Sh201,000.

“Following that evidence, it is clear from the record that no consent, authority or permission of the plaintiff was ever sought and/or obtained. No notice was given to him of the impending project as contemplated by section 46 of the Energy Act.

The irresistible conclusion is that the defendant is guilty of trespass,” the judge said.

The court also said Mr Kimani called an agricultural valuer who produced a valuation report showing that he should be paid Sh981,938. The judge agreed with the valuer.

“Trespass being actionable parse and even if the plaintiff did not lead evidence to guide the court under this heading, it is clear that the plaintiff has suffered loss directly because of the installation of the power line,” the judge said.

He said Mr Kimani may still be able to cultivate crops underneath the power lines but will be restricted in its use for building and growing trees among other uses that may interfere with the safe maintenance of the high voltage electric line.

“Doing the best I can I will award the plaintiff general damages in the sum of Sh250,000 which in my considered opinion is reasonable in the circumstances,” he said.

Ketraco has run into problems many times in tussle over wayleaves with communities residing along key corridors.

The utility has even recommended compulsory acquisition of land of wayleaves especially to deal with cases where land owners reneged on earlier negotiated and settle concessions.

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