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Court of AppealPartially AllowedCivil Appeal No. 29 of 2015 (consolidated with Civil Appeal No. 1 of 2018)

Joseph Mung’aya Makotsi & another v Kenya Power & Lighting Company Limited & 2 others [2019] KECA 748 (KLR)

Court of Appeal of Kenya
9 May 2019
2,969 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal let a farmer's damages award stand but freed Kenya Power from liability for trespass, confirming that later judgments must match earlier ones on who is liable.

What this practically means

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Executive summary

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This consolidated appeal before the Court of Appeal at Eldoret (Githinji, Okwengu and Mohammed, JJ.A.) arose from a landowner's suit against Kenya Power & Lighting Company (KPLC) and the Rural Electrification Authority (REA) for trespass and cutting of trees during electrification of a neighbour's property and Mutaho Primary School. The High Court (Sila Munyao, J.) found KPLC liable for 228 trees cut with consent (Shs. 27,000/=) and REA liable for 320 trees cut (Shs. 178,040/=), found REA liable for the trespass, and referred the parties to negotiate on relocation or compensation of the power line. After the trial judge's transfer, Ombwayo, J. delivered a second judgment directing relocation within five months and awarding general damages of Shs. 1,800,000/= against both defendants. The Court of Appeal dismissed the first appeal (Makotsi v KPLC & REA), holding that the trial judge properly evaluated conflicting evidence and that appellate courts do not disturb credibility-based findings. It held that the first judgment was a final judgment on liability and quantum and a preliminary decree on trespass and relocation; referral to negotiation promoted reconciliation under Article 159(2)(c), so objections of piecemeal judgment, functus officio and res judicata failed. The second appeal (KPLC v Makotsi & REA) was allowed only in part: Ombwayo, J. erred in fixing liability on KPLC when the preliminary decree had found only REA liable for the trespass, and the judgment against KPLC and the associated costs order were set aside. Each party was to bear its own costs of the second appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge properly evaluated conflicting evidence on the number of trees cut and their value, and whether the Court of Appeal should interfere with those findings of fact
  2. 2.Whether the first judgment delivered in piecemeal, its ambiguity, and the direction to parties to negotiate were erroneous (issues of piecemeal judgment, functus officio and res judicata)
  3. 3.Whether Ombwayo, J. erred in fixing liability for the Shs. 1,800,000/= general damages for trespass on KPLC when the preliminary decree had found only REA liable for the trespass
  4. 4.Whether a further order of costs should have been made by Ombwayo, J. and how costs of the consolidated appeals should be apportioned

Key legal issues

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01

Interference with trial court findings of fact on credibility

Holding

The Court of Appeal declined to interfere with the trial judge's findings on the number and value of trees cut, as they rested on witness credibility and were properly evaluated

Reasoning

The trial judge painstakingly evaluated conflicting valuation evidence, rejected the appellant's valuer as unreliable and unimpressive in demeanour, and preferred REA's witness as honest and professional. Since the findings were largely dependent on credibility and no misdirection was shown, the appellate court would not disturb them; the decretal sum had been fully satisfied and reopening the dispute would not serve the interests of justice.

p. 3
02

Piecemeal judgment, functus officio and res judicata where a court issues a preliminary decree and refers parties to negotiation

Holding

The first judgment was a final judgment on liability and quantum for the tree cutting and a preliminary decree on trespass, relocation and compensation; referral to negotiation was permissible and the objections of piecemeal judgment, functus officio and res judicata did not apply

Reasoning

The Court construed Sila Munyao, J.'s judgment as a preliminary decree on the trespass issue, with the parties given an opportunity to negotiate before final judgment, reflecting the weight and financial implications of the matter. Such a preliminary decree is appealable under section 68 of the Civil Procedure Act. The referral to negotiation promoted reconciliation under Article 159(2)(c) of the Constitution, so the objections were misplaced in the circumstances.

p. 4
03

Conformity of the final decree with the preliminary decree on liability for trespass

Holding

Ombwayo, J. erred in law and in fact in finding both defendants, including KPLC, liable for trespass when the preliminary decree had found only REA liable; the judgment against KPLC was set aside

Reasoning

The first judgment found REA liable because its officer testified that REA constructs power lines and constructed the line to Mutaho Primary School. In finding that 'the defendants are trespassers', Ombwayo, J. overlooked the preliminary decree's finding that only the second defendant (REA) was liable for that trespass. Since the final decree must conform with the preliminary decree on liability, and no party disputed the quantum of Shs. 1,800,000/=, only the liability of KPLC fell away.

p. 4
04

Costs where no further hearing took place before the second judgment

Holding

No further order of costs should have been made by Ombwayo, J. as the trial costs had already been awarded in the first judgment; costs of the appeals were apportioned between the parties

Reasoning

Since costs of the trial had already been awarded by Sila Munyao, J. and there was no further hearing before Ombwayo, J., a further costs order was unwarranted. The first appeal was dismissed with costs to the respondents; the dispute in the second appeal was essentially between KPLC and REA and was occasioned by an inadvertent trial court error, so no costs order was made in that appeal.

p. 4

Legal principles established

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  • An appellate court does not interfere with trial court findings of fact based on the credibility of witnesses absent misdirection or non-direction
  • A court may properly render a preliminary decree on some issues and a final decree later; such a preliminary decree is appealable under section 68 of the Civil Procedure Act
  • A final decree must conform with the preliminary decree on the issue of liability
  • Directing parties to negotiate is permissible as promotion of reconciliation under Article 159(2)(c) of the Constitution and does not render the judgment piecemeal or make the court functus officio

Court orders

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  1. 1.Civil Appeal No. 29 of 2015 dismissed with costs to be paid by the appellant to the respondents (KPLC and REA)
  2. 2.Civil Appeal No. 1 of 2018 allowed to the extent that the judgment as it relates to KPLC is set aside
  3. 3.The order of costs made in Civil Appeal No. 1 of 2018 is set aside
  4. 4.Each party in Civil Appeal No. 1 of 2018 shall bear its/his own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Eldoret, Environment and Land Court
E & L Case No. 993 of 2012
Jurisdiction invoked
First appellate and second appellate jurisdiction over appeals from the High Court (Court of Appeal jurisdiction under the Constitution; appeals from High Court in civil matters)
Consolidated with
Civil Appeal No. 1 of 2018 (Kenya Power & Lighting Company Limited v Joseph Mung’aya Makotsi & Rural Electrification Authority)

Relief refused

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First appellant's appeal against quantum, credibility findings, interest and other grounds in Civil Appeal No. 29 of 2015

The trial judge properly evaluated the evidence and the findings were based on credibility of witnesses; the decretal sum had been fully satisfied and it was not in the interest of justice to reopen the dispute

p. 3

Further order of costs by Ombwayo, J.

Costs of the trial had already been awarded by Sila Munyao, J. and there was no further hearing before Ombwayo, J.

p. 4

Costs

Civil Appeal No. 29 of 2015 dismissed with costs to the appellant (Makotsi) to be paid by the appellant to KPLC and REA; the order of costs made in Civil Appeal No. 1 of 2018 set aside; each party in Civil Appeal No. 1 of 2018 to bear its/his own costs of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An appellate court does not normally interfere with the findings of a trial court which are based on the credibility of witnesses in the absence of misdirection or non-direction and unless no reasonable tribunal could have reached at those findings.
p. 3Appellate restraint on findings of fact based on witness credibility
It is permissible for a court to give a preliminary decree depending on the circumstances of each case. Such a preliminary decree is appealable as section 68 of Civil Procedure Act provides.
p. 4Preliminary decrees and their appealability
The final decree should conform with the preliminary decree on the issue of liability.
p. 4Conformity of final decree with preliminary decree
In directing the parties to enter into negotiations, the court was promoting reconciliation as it is required to do under Article 159(2) (c) of the Constitution.
p. 4Court's duty to promote reconciliation under Article 159(2)(c)
(ii) Civil Appeal No. 1 of 2018 is allowed to the extent that the judgment as it relates to the appellant (KPLC) is set aside. The order of costs made in Civil Appeal No. 1 of 2018 is also set aside.
p. 4Final orders - second appeal allowed; liability of KPLC set aside
(iii) Each party in Civil Appeal No. 1 of 2018 shall bear its/his own costs of the appeal.
p. 4Final orders - costs of the second appeal

Issues in the judgment

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minor

The judgment refers to two different High Court suit numbers for the same case ('High Court Civil Suit No. 8 of 2012' in paragraph 1 versus 'E & L CASE NO. 993 OF 2012' in the title), apparently referring to the same litigation

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Mung’aya Makotsi & another v Kenya Power & Lighting Company Limited & 2 others [2019] KECA 748 (KLR)", Case Analysis (2019). Civil Appeal No. 29 of 2015 (consolidated with Civil Appeal No. 1 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/748/eng@2019-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.