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ELCDismissedNot stated in judgment (formerly filed in High Court Meru on 19th July 2017, transferred to ELC Nyahururu)· [2019] KEELC 3474 (KLR)

Kenya Elecricity Transmission Company v Lpeton Lengidi & 3 others [2019] KEELC 3474 (KLR)

Environment and Land Court
7 May 2019
MOM.C. Oundo
2,356 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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KETRACO lost its bid to reduce a Sh7.7 million land compensation award because it failed to plead the easement relief or prove a clear court error.

What this practically means

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Executive summary

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This was a Notice of Motion dated 22nd November 2018 by the Plaintiff (a way leaves acquisition entity) seeking review and setting aside of the judgment and decree of 29th October 2018, which had directed it to pay the Defendants Ksh 7,728,198/- as compensation. The Applicant sought substitution with Ksh 2,520,927/- and an order directing the Land Registrar Nyahururu to register an easement over titles Samburu/Poro B/274, 215, 132 and 142. The application was brought under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, on the basis of an alleged error on the face of the record arising from an arithmetic mistake or omission in the judgment. The Respondents opposed, contending that all matters raised had been considered in the judgment, that the compensation was not pegged at 30% of the land value, and that the easement relief was unpleaded; matters already canvassed were grounds for appeal, not review. The court framed three issues: whether it could review its decision, whether there was an error apparent on the face of the record, and whether it could order registration of an easement. Applying Section 80 and Order 45 Rule 1, and the Muyodi and Nyamogo authorities, the court found no new and important matter and no error apparent on the face of the record. Relying on David Sironga Ole Tukai and Gandy v Caspar Air Charters, it held the easement relief was not pleaded and could not be granted. The application was dismissed with costs to the Respondents on 7th May 2019.

Key legal issues

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01

Whether the Applicant demonstrated grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

The application for review failed; no new and important matter or error apparent on the face of the record was demonstrated

Reasoning

The court restated the three grounds for review: discovery of new and important matter, mistake or error apparent on the face of the record, and any other sufficient reason. It found no material showing discovery of new evidence after due diligence, and applying Muyodi, held that an erroneous decision is distinct from an error apparent on the record; the original judgment's view was a possible one, reviewable only on appeal.

p. 3
02

Whether the court could direct registration of an easement over the Respondents' titles

Holding

No - the relief was not pleaded and cannot be awarded at the review stage

Reasoning

Relying on David Sironga Ole Tukai and Gandy v Caspar Air Charters, the court held that issues flow from the pleadings and relief not founded on pleadings will not be given. The Applicant's pleadings in the original suit sought assessment of compensation and injunction, not registration of an easement, so the court would be pronouncing a claim not made by the parties.

p. 4

Legal principles established

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  • An error apparent on the face of the record must be obvious and patent, not one established by a long drawn process of reasoning on which two opinions may be conceived
  • Relief not founded on the pleadings cannot be granted; parties are confined to their pleadings

Court orders

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  1. 1.The Notice of Motion dated 22nd November 2018 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 22 Rules 25 and 52; Order 45 Rule 1; Order 51 Rule 1
  • Land ActSection 148(5)

Cases cited (9)

  • Skool Enterprise Limited vs Housing Finance Company of Kenya Limited & 3 Others
    [2017] eKLR
  • Kenya Electricity Transmission Company Limited vs James Kinoti M'twerandu
    [2028] eKLR
  • Caltex Oil (Kenya) Limited vs Rono Limited
    [2016] eKLR
  • National Bank of Kenya Limited vs Ngungu Njau
    [1997] eKLR
  • Muyodi V. Industrial and Commercial Development Corporation & Another
    (2006) 1 EA 243
  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174
  • Chandrakhant Joshibhai Patel V R
    (2004) TLR, 218
  • David Sironga Ole Tukai v Francis Arap Muge & 2 others
    [2014] eKLR
  • Gandy v Caspar Air Charters Ltd
    [1956] 23 EACA, 139
Jurisdiction invoked
Article 159 of the Constitution; Section 80 of the Civil Procedure Act; Order 45 Rule 1 and Order 22 Rules 25 and 52, Order 51 Rule 1 of the Civil Procedure Rules

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, "Kenya Elecricity Transmission Company v Lpeton Lengidi & 3 others [2019] KEELC 3474 (KLR)", Case Analysis (2019). Not stated in judgment (formerly filed in High Court Meru on 19th July 2017, transferred to ELC Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3474/eng@2019-05-07

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