Mavoloni Company Ltd v Tanathi Water Services Board (Civil Appeal E062 of 2020) [2026] KECA 1133 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a Kshs. 33.9 million land compensation claim because compulsory acquisition was never proved and the claimant argued a case it hadn't pleaded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's objection to the competence of the appeal, based on alleged late service of the record of appeal contrary to rule 90(1) of the Court of Appeal Rules 2010, had merit
- 2.Whether the appellant proved its case as pleaded in the High Court, namely compensation for the suit property allegedly acquired by the respondent
Key legal issues
#Whether the appeal was incompetent for late service of the record of appeal
The objection failed because the respondent never applied to strike out the record within the 30-day window under the proviso to rule 84/rule 90(1)
Rule 90(1) of the Court of Appeal Rules 2010 required service within seven days of lodgement. The remedy for non-compliance lay in rule 84, which allowed an application to strike out within 30 days of service. The respondent, having been served on 7th July 2020, never applied to strike out, and the proviso absolutely barred the objection. The Court found support in Magnate Ventures Ltd v Majestic Security Services Ltd.
Whether compulsory acquisition of the suit property was proved
No; the statutory procedure for compulsory acquisition was never followed, so the pleaded case failed
Compulsory acquisition is a term of art under Article 40(3)(b) of the Constitution and Part VIII of the Land Act, 2012. Under section 21 of the repealed Water Act, 2002 and the Land Acquisition Act (Cap 295), gazette notice, notification of interested persons, ministerial certification, a public inquiry and payment of full compensation were required. None of these steps occurred; instead the parties transacted on a willing-seller, willing-buyer basis under an agreement for sale that excluded the suit property.
Whether the appellant could claim compensation on a basis different from its pleadings
No; parties are bound by their pleadings, and a court may not grant relief or determine issues not pleaded
Relying on Gandy v Caspar Air Charters Ltd, Kenya Commercial Bank Ltd v Sheikh Osman Mohammed and David Sironga ole Tukai v Francis arap Muge, the Court held that parties set the agenda in adversarial litigation and must seek amendment if they wish to plead a different case. If the appellant's real complaint was unlawful interference by the dam, it should have pleaded that case; in any event, on the evidence it did not prove such interference on a balance of probabilities.
Legal principles established
#- A respondent who alleges late service of a record of appeal must apply to strike out the appeal within 30 days of service; failure to do so bars raising the objection
- On a first appeal, the Court is enjoined to re-appraise the evidence afresh and draw its own independent inferences of fact
- Compulsory acquisition of land requires the statutory procedure, including gazettement and an inquiry, to be followed; relief and issues not founded on the pleadings will not be granted or determined
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Machakos
- Not stated in the judgment
- Jurisdiction invoked
- First appeal under rule 31(1)(a) of the Court of Appeal Rules
Relief refused
#Compensation of Kshs. 33,907,000.00 for the suit property and developments
No compulsory acquisition of the suit property was proved; the property was not part of the agreement for sale, and the claimed case was not pleaded
Costs
The appeal is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As the first appeal, we are enjoined to revisit the evidence that was before the superior court afresh, analyse it, evaluate it and come to our own independent conclusion, but always bearing in mind that the trial court had the benefit of seeing the witnesses, hearing them and observing their demeanour and giving allowance for that.
Having failed to do so, the proviso to rule 90(1) barred the respondent, in absolute terms, from raising the issue.
It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded.
From the evidence on record, that prescribed procedure was not followed in this case, leading to the inevitable conclusion that there was no compulsory acquisition of the suit property as understood in law.
Taking all the above into account, we come to the conclusion that the High Court did not err by dismissing the appellant's suit, and that this appeal has absolutely no merit. The same is dismissed with costs to the respondent. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mavoloni Company Ltd v Tanathi Water Services Board (Civil Appeal E062 of 2020) [2026] KECA 1133 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1133/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.