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ELCDismissedKisii ELC Case No. 92 of 2017 (as stated in the Memorandum of Appeal context; appeal from Kisii CMCC No. 67 of 2018)· [2021] KEELC 5 (KLR)

Makori v Kenya Electricity Transmission Company Ltd; Makori (Third party) (Environment and Land Appeal 16 of 2019) [2021] KEELC 5 (KLR)

High Court of Kenya (Environment and Land Court jurisdiction at Kisii)
31 May 2022
2,913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner lost his compensation claim against Kenya Power because his father had dishonestly taken the money, and he never formally pleaded his damages claim in court.

What this practically means

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Executive summary

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The Appellant, owner of land parcel Bassi/Bogetaorio/11/4495 (sub-divided in 2015 from parcel 945), sued Kenya Power alleging trespass when the company laid electricity wayleaves over his land and permanent house on 12th April 2017 without notice or compensation. The Respondent asserted it had negotiated a wayleave in 2012 with the Appellant's father (joined as 2nd Defendant/3rd Party), who signed an inventory including the Appellant's structures and received 70% of Kshs. 5,523,680 compensation. The trial Magistrate dismissed the claim, directing that the 30% compensation balance be recovered from the 3rd Party, who bore the suit costs. On appeal, the High Court (J.M. Onyango, J) framed four issues: trespass, inclusion of the Appellant's structures in the compensation, entitlement to special damages, and the costs order. The court found the Appellant's parcel did not exist during the 2012 negotiations; the Respondent had consent and no trespass occurred. The Appellant's exhibits confirmed his structures were in the compensated inventory, any recovery lying against the 3rd Party. Special damages (Kshs. 4,475,000 demolition and Kshs. 55,000 rent) were never pleaded and cannot be introduced in submissions. The costs order against the 3rd Party was proper given his dishonesty in receiving compensation for structures belonging to the Appellant. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Respondent trespassed on parcel No. BASSI/BOGETAORIO 11/4495

Holding

No trespass; the Respondent had consent through the 2012 wayleave negotiations with the 3rd Party, the parcel being non-existent at the time.

Reasoning

The parcel 4495 was hived off parcel 945 only in 2015, after the 2012 negotiations. The 3rd Party, then in occupation of the ancestral land, signed an inventory allowing the wayleave and received 70% compensation. The entry of 12th April 2017 flowed from that consent, so the trial court rightly found dishonesty by the 3rd Party rather than trespass by the Respondent.

p. 5
02

Whether the Appellant's permanent structures were considered in the compensation calculation

Holding

Yes; the Appellant's own exhibits showed his structures were included in the compensated inventory accepted by the 3rd Party.

Reasoning

Exhibits PEX-1/PEX-3 mirroring DEX-1/DEX-2 demonstrated the Appellant's house was in the inventory of structures to be demolished. The 3rd Party admitted signing the inventory and informing the Appellant. Any compensation due the Appellant lies against the 3rd Party from the 30% balance, not against the Respondent afresh.

p. 5
03

Whether the Appellant is entitled to special damages

Holding

No; special damages were not pleaded in the Plaint and cannot be introduced in submissions.

Reasoning

Citing Court of Appeal authority and Shah JA in Charles Sande, the court reiterated that special damages must be specifically pleaded and strictly proved. The proper course was amending the Plaint, which the Appellant never did; the trial Magistrate was therefore right to decline the awards of Kshs. 4,475,000 and Kshs. 55,000.

p. 6
04

Whether the trial Magistrate erred in ordering the 3rd Party to bear the costs of the suit

Holding

No error; the 3rd Party was properly joined as 2nd Defendant by the Respondent and, having dishonestly received compensation for the Appellant's structures, could properly be saddled with costs.

Reasoning

Although the Appellant never claimed against the 3rd Party, the joinder was at the Respondent's instance and was allowed. The 3rd Party's dishonesty necessitated the suit, justifying the costs order against him.

p. 6

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved; claims not pleaded cannot be introduced by submissions.
  • In the absence of specific pleadings on special damages, the claim cannot be allowed even if unopposed.
  • A party claiming compensation in respect of land dealings must confront the antecedent negotiations that predated acquisition of a sub-divided title.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Energy ActSection 46

Cases cited (5)

  • Equity Bank Ltd v Gerald Wang'ombe Thuni
    (2015) eKLR
  • Okulu Gondi v South Nyanza Sugar Co. Ltd
    (2018) eKLR
  • Richard Okuku Oloo v South Nyanza Sugar Co. Ltd
    {2013} eKLR
  • Charles Sande v Kenya Cooperative Creameries
    Civil Appeal No. 154 of 1993
  • Republic v Chairman Public Procurement Administrative Review Board & another Ex-Parte Zapkass Consulting and Training Limited & another
    [2014] eKLR
On appeal from
Senior Principal Magistrate's Court at Kisii
Kisii CMCC No. 67 of 2018 (formerly Kisii ELC Case No. 92 of 2017)
Jurisdiction invoked
First appeal from the Senior Principal Magistrate's Court (statutory appellate jurisdiction under the Civil Procedure Act)

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, "Makori v Kenya Electricity Transmission Company Ltd; Makori (Third party) (Environment and Land Appeal 16 of 2019) [2021] KEELC 5 (KLR)", Case Analysis (2022). Kisii ELC Case No. 92 of 2017 (as stated in the Memorandum of Appeal context; appeal from Kisii CMCC No. 67 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/5/eng@2021-05-31

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