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ELCPartially AllowedMakueni ELC Suit (amended plaint dated 26th July, 2018) - not expressly stated in judgment· [2020] KEELC 923 (KLR)

Dobbin Mutiso Ndolo v Kenya Electricity Transmission Company Limited [2020] KEELC 923 (KLR)

Environment and Land Court
26 October 2020
5,449 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a landowner Kshs. 1.57 million from KETRACO for a power line way leave, endorsing 30% compensation but insisting on proper expert valuations.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of Ndolo Kakui (registered owner of parcel Mbitini/Kyemundu/722), sued KETRACO for Kshs. 2,669,735/= as compensation for loss of use of land, damage to crops and forest produce arising from the acquisition of a way leave and construction of a 132 KV transmission line. The Defendant admitted the way leave acquisition, paid Kshs. 281,741/= for crops and trees, and offered Kshs. 146,250/= for limited loss of land use, contending that way leave compensation under the Land Act is limited to loss of use and applying its 30% compensation policy to a Kshs. 250,000/= per acre general valuation by Lloyd Masika. The Plaintiff adduced expert evidence from a valuer (Kshs. 600,000/= per acre; affected area 1.99 acres), an Agricultural Officer (crops), and a Forester (forest produce, using FSGO rates), while the Defendant's experts conceded they had not conducted a specific valuation and that KETRACO had not engaged Ministry of Agriculture or KFS personnel. The court adopted the 30% compensation policy as sound in law, but applied the Plaintiff's specific valuation (30% x 1.99 x 600,000 = Kshs. 358,200/=), adopted the Agricultural Officer's crop assessment reduced for mangoes from 10 to 5 future production years (Kshs. 680,400/=), and the Forester's forest produce assessment (Kshs. 815,736.20/=). Judgment for a net total of Kshs. 1,572,735.20/= after deducting amounts paid, with costs and interest from filing until payment in full.

Key legal issues

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01

Whether the estate suffered loss from the way leave acquisition

Holding

Loss of limited land use, crops and forest produce was established; the Defendant's own property damage report acknowledged the loss

Reasoning

The Defendant admitted the way leave acquisition and its property damage report was a clear acknowledgement of loss. The Plaintiff, holding a limited grant of letters of administration, was the proper person to sue. DW1 admitted visiting the site and seeing damage to crops, fruit trees and forest cover. Only quantum was truly in dispute.

p. 5
02

Compensation rate for limited loss of land use

Holding

The 30% of market value of affected land policy was adopted, yielding Kshs. 358,200/= using 30% x 1.99 acres x Kshs. 600,000/= per acre

Reasoning

The court endorsed the 30% compensation policy as applied in prior KETRACO cases, aligning with prudent use of public funds under Article 201(d). However, it rejected the Defendant's Kshs. 250,000/= per acre valuation because DW2 conceded that where a general value is disputed, a specific valuation should be done, and no specific rebuttal valuation was produced.

p. 5
03

Quantum of damage to crops

Holding

Kshs. 680,400/= - the Agricultural Officer's assessment adopted, with mango future production reduced from 10 to 5 years

Reasoning

The Defendant's crop assessment was casual: crops lumped together, maturity state and breed not indicated, and rates adopted without calculation. DW1 conceded crops were outside her specialisation and KETRACO did not engage the Ministry of Agriculture. The court therefore relied on PW1's assessment based on the Ministry's Crop Compensation Guideline, moderating only the 10-year mango assessment to 5 years.

p. 5
04

Quantum of damage to forest produce

Holding

Kshs. 815,736.20/= as assessed by the Forester using the Forest Service General Order rates

Reasoning

The Defendant did not engage anyone from Kenya Forest Service and produced no rebuttal expert report. DW1 agreed forest damage should be assessed at KFS rates. PW2 used the FSGO 2016/2017 royalty rates, and the court, lacking expertise in forest produce assessment, adopted his report.

p. 6

Legal principles established

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  • Way leave compensation policy pegged at 30% of the value of affected land is grounded on sound principles of law
  • Where a general valuation is disputed, the court must be guided by a specific valuation of the suit land by a registered valuer, in the absence of rebuttal expert evidence
  • Future production may be compensated where the affected asset is permanently lost, but the period adopted must be reasonable

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant for Kshs. 1,854,336.20/= less the amount already paid of Kshs. 281,601.00/=, giving a net total of Kshs. 1,572,735.20/=, comprising limited loss of land use (Kshs. 358,200/=), damage to crops (Kshs. 680,400/=) and damage to forest produce (Kshs. 815,736.20/=)
  2. 2.Costs of the suit to the Plaintiff
  3. 3.Interest on the decretal amount from the time of filing the suit till payment in full

Authorities

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Legislation

  • Land Actsection 148
  • Land Actway leave acquisition provisions (generally)
  • Constitution of KenyaArticle 201(d)

Cases cited (3)

  • National Land Commission vs. Estate of Sisiwa Arap Malakwen & Anor
    (2017) eKLR
  • KETRACO vs. Valeria Helen Wangechi Kigano & Others
    (2018) eKLR
  • KETRACO vs. James Kinoti M'twerandu
    (2018) eKLR
Jurisdiction invoked
Original civil suit for compensation for way leave acquisition under the Land Act, 2012 (first-instance Environment and Land Court jurisdiction); no constitutional provision invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dobbin Mutiso Ndolo v Kenya Electricity Transmission Company Limited [2020] KEELC 923 (KLR)", Case Analysis (2020). Makueni ELC Suit (amended plaint dated 26th July, 2018) - not expressly stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/923/eng@2020-10-26

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