Judge finds that company should not carry out excavation near electricity lines.
Kenya Power erected nine power lines which run across the parcel of land which the defendant alleged to have leased from the Export Processing Zone Authority.
It argued that it had made it clear to the EPZ company that it is not possible to relocate any of the nine power lines due to sensitivity.
An Export Processing Zone company has been permanently restrained from excavating or developing a parcel of land carrying high voltage power lines in Mombasa.
Kipevu Inland Container EPZ Ltd, which was sued by Kenya Power #ticker:KPLC, was also ordered to restore the land to its prior state (before the excavations).
Justice Charles Yano of the Environment and Land Court in Mombasa said Monday he was satisfied that the State utility firm had adduced credible evidence of the existence of its legal right to use the land in form of a wayleave.
“The plaintiff’s (Kenya Power) evidence remains uncontroverted, the defendant’s (Kipevu) possession and use of the land is subject to the public right of way or wayleave,” said Justice Yano.
The judge noted that the fact that the pylons - which are used carry to electricity cables high above the ground - have not collapsed does not mean action should not be taken to prevent such a danger from occurring.
According to Kenya Power, after applying and obtaining necessary approvals in 1998, it erected nine power lines at both 33KV and 132KV which run across the parcel of land which the defendant alleged to have leased from the Export Processing Zone Authority.
The power distribution company argued that for high voltage wires, the law demands that developments should not be carried out within 20 minutes from the pylons.
Switch off power
It further argued that it had made it clear to the EPZ company through numerous correspondences that it is not possible to relocate any of the nine power lines because of the sensitivity of the loads being supplied as it would imply switching off power for a period of more than one month.
The power distributor also argued that the EPZ company had been recklessly carrying out excavations and interfering with its lawful mandate and further endangering the lives of the people near the said power lines.
Kenya Power noted that as a result of the excavation, the defendant had left the power lines standing in a very hazardous manner likely to cause extreme loss.
The EPZ Company had argued that it has not been proved that the excavation that Kenya Power complained of is so serious and that restoration to the land’s former condition is the only method whereby justice can be adequately done.
The company urged the urged the court to decline to grant the order of mandatory injunction.
The court noted that it was satisfied that Kenya Power had proved its case against the defendant on a balance of probabilities.
