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ELCPartially AllowedNotice of motion dated 23rd May 2018 in Petition (main suit) filed 6th March 2018 (number not stated in judgment)· [2019] KEELC 193 (KLR)

Prinsal Enterpises Limited v Kenya Electricity Transmission Company Limited [2019] KEELC 193 (KLR)

Environment and Land Court
5 December 2019
1,999 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent in the main petition (Kenya Power & Lighting Company) applied by notice of motion dated 23rd May 2018 under Article 159 of the Constitution, Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules seeking review of the judgment of Lady Justice Gitumbi delivered on 19th April 2018. It sought retraction of the compensation award of Kshs.13,475,000 and substitution with Kshs.3,208,275, contending the award contained an apparent arithmetic error since only 23.21% (about 2.619 acres) of the 11.24-acre parcel Juja/Komo Block 2/1670 was traversed by power lines, and further sought an order that the Land Registrar register an easement against the title. The petitioner opposed, arguing no arithmetic error existed, the court lacked jurisdiction as the matter was on appeal on quantum, and the easement prayer was never made at trial. L. Komingoi J framed three issues. On review, the court re-read the original judgment, found the trial judge had explained how she computed Kshs.13,475,000 and intended that award, and held there was no error apparent on the face of the record, declining to substitute the sum. On the easement, the court found the applicant had addressed easement registration in its trial submissions, relying on sections 98 and 149 of the Land Act 2012, and applying Great Lakes Transport Co (U) Ltd v Kenya Revenue Authority held a pleaded prayer could be granted even if not in the formal orders. The application succeeded only in part: the Land Registrar was directed to register an easement against title Juja/Komo Block 2/1670 in consideration of Kshs.13,475,000, the review of the quantum was refused, and the applicant was ordered to bear the costs of the application.

Key legal issues

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01

Error apparent on the face of the record justifying review

Holding

No error apparent on the face of the record; the judgment of 19th April 2018 explained how the award of Kshs.13,475,000 was computed and the court could not substitute its own computation.

Reasoning

The applicant argued that the award implied compensation for the entire 11.24 acres yet only 23.21% (2.619 acres) was traversed by power lines. The court re-read the original judgment and found Judge Gitumbi expressly computed the award and intended to award Kshs.13,475,000. Since the judge gave an explanation for the figures, there was no accidental slip or arithmetic mistake capable of correction under Section 80 and Order 45.

p. 3
02

Registration of an easement as consideration for compensation

Holding

The court directed the Land Registrar to register an easement against the title in consideration of the compensation awarded.

Reasoning

The applicant relied on sections 98 and 149 of the Land Act 2012 in its submissions to the petition, contradicting the petitioner's claim that easement registration was never sought. The court relied on those provisions and on Great Lakes Transport, holding that a prayer addressed in the body of submissions may be granted even if not in the formal orders sought.

p. 3

Legal principles established

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  • Once a land owner is compensated for a power line wayleave, an easement ought to be registered against the title
  • A court sitting as a court of equity may award a prayer pleaded in the body of the pleadings even if not specifically sought in the orders

Court orders

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  1. 1.The Land Registrar is directed to register an easement against title number Juja/Komo Block 2/1670 in consideration of Kshs.13,475,000 as compensation
  2. 2.Review of the judgment of 19th April 2018 declining - the sum of Kshs.13,475,000 was not retracted or substituted
  3. 3.The respondent/applicant to bear costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 Rules 1 and 2
  • Land ActSections 2, 98 and 149

Cases cited (9)

  • Zablon Mokua vs Solomon M Choti & 3 others
    [2016] eKLR
  • Chandrakhant Joshipai Patel vs R
    [2004] TLR 218
  • Wanjiru Gikonyo & 2 Others vs National Assembly of Kenya & 4 Others
    [2016] Eklr
  • James Githuku Gichuki & Another vs Makueni County Sand Conservation & Utilisation Authority
    [2018] eKLR
  • Jersey Evening Post Limited vs Al Thani
    [2002] JLR 542 at 550
  • Vailabhadas Karsandas Raniga vs Mansukhal Jivraj and Others
    [1965] EA 780
  • Great Lakes Transport Co (U) Ltd vs Kenya Revenue Authority
    [2009] eKLR
  • Skool Enterprises Limited vs Housing Finance Company of Kenya Ltd & 3 Others
    [2017] eKLR
  • Nyamogo & Nyamogo Advocates vs Kago
    [2001] 1EA 173
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010; Section 80 of the Civil Procedure Act; Order 45 Rules 1 and 2 of the Civil Procedure Rules, 2010

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, "Prinsal Enterpises Limited v Kenya Electricity Transmission Company Limited [2019] KEELC 193 (KLR)", Case Analysis (2019). Notice of motion dated 23rd May 2018 in Petition (main suit) filed 6th March 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/193/eng@2019-12-05

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