Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedConstitutional Petition No 5 of 2016· [2019] KEELC 1066 (KLR)

Ayadem Company Limited v Kenya Power & Lighting Company Limited [2019] KEELC 1066 (KLR)

Environment and Land Court
4 October 2019
ECE.C. Cherono
2,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya Power must pay a Kerugoya landowner Ksh. 1.7 million because a way leave agreement signed by a widow without letters of administration did not bind the new landowner.

What this practically means

#

Executive summary

#
The petitioner, registered proprietor of L.R. KABARE/NYANGATI/6123, petitioned the court alleging that Kenya Power & Lighting Company Limited, between August and September 2015, erected transmission power lines across his land without colour of right, violating his rights to property (Article 40) and fair administrative action (Article 47). He sought declarations of violation, a mandatory injunction to remove the poles, a permanent injunction, compensation at market value, and general, exemplary and aggravated damages. The respondent countered that way leave agreements had been executed in 2011 with landowners on the line route, including Wangui Munyi, widow of Munyi Kabare, the registered proprietor of the original parcel KABARE/NYANGATI/115, which was later subdivided and sold to the petitioner; its negotiating team valued the affected portion at Ksh. 572,400/= and offered 50% of that, Ksh. 286,200/=, while the petitioner's valuer valued the affected portion at Ksh. 2,880,000/=. The court framed three issues: whether the 2011 way leave agreement bound the petitioner; if not, whether he was entitled to compensation; and costs. It held there was no proof the widow had taken out letters of administration of the deceased's estate, and that the respondent had proceeded on the mistaken belief that her signature sufficed, without notice to the petitioner in actual possession. Applying Phyllis N. Mbaluto, the Electric Power Act No. 11 of 1997, the repealed Way Leave Act and Section 148 of the Land Act No. 6 of 2012, the court awarded compensation, averaging the parties' valuations, of Ksh. 1,726,200/= plus interest, with the respondent bearing the petition costs. The declaratory and injunctive reliefs sought were not granted.

Key legal issues

#
01

Whether the 2011 way leave agreement signed by Wangui Munyi, the widow of the original registered owner, binds the petitioner

Holding

It does not. There was no proof that Wangui Munyi had taken out letters of administration of the deceased's estate, and the respondent went ahead without notice to the petitioner, who was in actual possession and occupation.

Reasoning

The official search showed Munyi Kabare as registered proprietor of the original parcel KABARE/NYANGATI/115 and the way leave agreement was executed by his wife. No grant of letters of administration was proved, so she had no capacity to consent to dealings over the estate. The parcel was later subdivided and sold to the petitioner, and the respondent constructed the power line without notice to the petitioner in occupation.

p. 3
02

Whether the petitioner is entitled to compensation and in what amount

Holding

Yes. The court applied the statutory compensation regime (Sections 45 and 46 of the Electric Power Act, Sections 4 and 5 of the Way Leave Act, and Section 148 of the Land Act) and awarded an average of the two valuations, Ksh. 1,726,200/= plus interest.

Reasoning

The court found the petition governed by the Electric Power Act No. 11 of 1997 and the Way Leave Act, with compensation now under Section 148 of the Land Act No. 6 of 2012. Drawing on Prinsal Enterprises and the KPLC v Kingara diminution-in-value approach, it took the petitioner's valuation (Ksh. 2,880,000/=) and the respondent's (Ksh. 572,400/=) and averaged them to fix reasonable compensation.

p. 4

Legal principles established

#
  • A way leave agreement executed by a person without letters of administration over a deceased owner's estate does not bind a successor in title who was in actual occupation and was not notified; the occupant is entitled to compensation under the Electric Power Act and the Way Leave/Land Act provisions
  • Where parties' valuations of the affected portion differ, an average of the two valuations is a reasonable measure of compensation

Court orders

#
  1. 1.Judgment entered for the petitioner against the respondent in the sum of Ksh. 1,726,200/= plus interest from 4th October 2019
  2. 2.The respondent to bear the costs of the petition

Authorities

#

Legislation

  • Constitution of KenyaArticles 40, 47, 23(3)
  • Electric Power ActSections 45, 46(1)-(3)
  • Way Leave ActSections 4, 5, 6(1)
  • Land Act No. 6 of 2012Section 148(1)-(6)

Cases cited (3)

  • PHYLLIS N. MBALUTO VS KENYA POWER AND LIGHTING CO. LIMITED
    (2012) e K.L.R
  • Prinsal Enterprises Limited Vs Kenya Electricity Transmission Co. Ltd
    (2018) e K.L.R
  • Kenya Power & Lighting Company Limited Vs Josphat P. Kingara
    (2013) e K.L.R
Jurisdiction invoked
Articles 40, 47 and 23(3) of the Constitution of Kenya; Electric Power Act No. 11 of 1997; Way Leave Act Chapter 292 (repealed); Land Act No. 6 of 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ayadem Company Limited v Kenya Power & Lighting Company Limited [2019] KEELC 1066 (KLR)", Case Analysis (2019). Constitutional Petition No 5 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1066/eng@2019-10-04

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