JUDGMENT OF TUIYOTT JA
1.On May 2, 2018, Kibunja, J. held that the application by Kenya Electricity Transmission Company Limited (KETRACO) (the appellant) dated February 14, 2017 seeking to strike out the suit by the George Ngwena Obonyo and Peter Ochieng Opiyo (the respondents) was without merit and dismissed it with costs.
2.The suit, being Kisumu Environment and Land Court Case No.334 of 2016, was commenced by the respondents against Ketraco vide a plaint filed on 8th December, 2016. In the suit, it was alleged that Ketraco erected and maintained a power line on Land Parcels described as Kisumu/Kasule/6708, Kisumu/Kasule/6709 and Kisumu/Kasule/6710 without the consent of the owner Jane Ocheng’e Obonyo (deceased), a step mother to the 1st respondent. The 2nd respondent is now the registered owner of Kisumu/Kasule/6708 and also Kisumu/Kasule/2375.
3.The respondents asserted that the lines were erected without compensation and that Ketraco refused, neglected and/or otherwise failed to compensate them. In that plaint dated September 28, 2016 they sought the following prayers:
4.Ketraco resisted the claim and, as a bulwark, asserted that it was incorporated on December 2, 2008 and was not in existence in 1983 when the respondents alleged it entered and erected the power lines complained of. Further, that it does not own the offending electric transmission power lines.
5.Ketraco did not think much of the suit and hoped that the Environment and Land Court (ELC) would make short shrift of it in a striking out notice of motion dated 14th, February 2017. The ELC correctly summarized the grounds upon which the motion was premised to be that the suit was:a.scandalous, frivolous, vexatious and otherwise abuse of the process of court.b.did not disclose any reasonable cause of action.c.was statutorily time barred as the cause of action arose on 1983.d.is likely to prejudice and embarrass and the application should be allowed in the interests of justice.
6.In determining the motion, the learned trial Judge, inter alia, made the following findings:
7.During plenary hearing Mr. Wesonga, appearing for Ketraco, informed the Court that his entire appeal turned on one issue; whether the appellant should be liable for trespass caused by power lines which it does not own and which were erected before it was incorporated in 2008. In the meantime, Ketraco abandoned its criticism of the learned Judge’s holding that the suit was not time barred.
8.Counsel submitted that the learned Judge did not consider that Ketraco, incorporated in 2008, could not trespass on the respondents’ property in the absence of any evidence that Ketraco took over ownership of the power lines after it was incorporated. He contends that it was pleaded by Ketraco, and not controverted by the respondents, that it did not take over the management and control of the power lines.
10.Ketraco further asserts that, at the very least, the respondents did not plead or prove that the appellant took over the power lines.
11.The respondents neither filed submissions nor attended hearing.
13.There is no dispute that Ketraco was incorporated on December 2, 2008 and did not exist in 1983 when the trespass is alleged to have commenced. Yet the case by the respondents is that while trespass commenced in 1983, it continues to date. The success or failure of the respondents’ case turns on whether it will be able to prove that Ketraco assumed ownership of the offending power lines after it was incorporated. I understand counsel for Ketraco to be arguing that the respondents cannot discharge this burden because they have not in the first place pleaded that Ketraco is the owner of the power lines.
14.I have read the pleadings in this matter. Right away, the plaint is inelegant but what is to be made of paragraph 8?
15.To be deduced from this clumsy pleading is that the respondents are accusing Ketraco of not only unlawfully entering the land but also of continuing to occupy it by maintaining the power lines. It is an averment that Ketraco either owns or has control over the power lines which remain erected on the suit property. It is not the business of the courts to punish inelegant pleadings if they somewhat reveal the case of a party. The respondents’ pleadings are the type that can be revamped through amendment and should not suffer the fatal fate of a striking out. That is the counsel of the decision in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another  eKLR.
16.It is clear to me that the issue of ownership of the offending transmission line properly emerges from the pleadings and must be preserved and left for resolution through the taking of evidence. In the end, the learned Judge reached a correct decision by declining the striking out motion.
17.I would propose that the appeal be dismissed with costs.