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ELCDismissedNot stated in judgment (Notice of Motion dated 16th October 2020)· [2022] KEELC 484 (KLR)

Francis Kuria Mwaura & 64 others v Kenya Rural Roads Authority & 3 others [2022] KEELC 484 (KLR)

Environment and Land Court
10 March 2022
3,980 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out landowners' bid for interest and unpaid compensation because they never raised those claims in their original case or proved them properly.

What this practically means

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Executive summary

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The Plaintiffs/Applicants, owners of land compulsorily acquired in January 2010 for the expansion of the Thogoto-Gikambura-Mutarakwa Road in Ndeiya, Kiambu County, moved the court by Notice of Motion dated 16th October 2020. Through the supporting affidavit of Ms Victoria Wambua of M/s J.M Njenga & Co. Advocates, they sought: (a) interest at 14% p.a. on the aggregate compensation award of Kshs.140,656,345.06 from the date of acquisition, with 15% of that interest payable to the advocate; (b) Kshs.3,204,016 in unremitted legal fees from awards already paid; and (c) Kshs.22,263,249 for 32 applicants whose compensation remained unpaid, less Kshs.3,339,487.35 legal fees. The 4th Defendant/Respondent, through Edmond Gichuru, opposed, stating that unpaid persons had not resolved succession issues, that applicants paid directly should be sued by the advocate for fees, that the Commission was not party to the Legal Fees Agreement, and that it pays only what it receives from the acquiring authority. The court framed three issues. First, it held that a claim for interest is a substantive issue triable at the plenary hearing and cannot be raised by post-judgment application; pre-suit interest is a matter of substantive law. Second, since interest was never pleaded in the plaint of 6th January 2014, pursuing it now violated the doctrine of departure, parties being bound by their pleadings. Third, the claim for Kshs.22,263,249 was unproved special/liquidated damages, resting on an unsigned, unauthenticated list with no awards annexed. The application was dismissed with costs to the 4th Defendant/Respondent only.

Key legal issues

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01

Jurisdiction to award interest on a post-judgment application

Holding

The court lacks jurisdiction to award interest never pleaded or adjudicated at trial; pre-suit interest is a matter of substantive law

Reasoning

Interest for the period preceding suit is substantive, not procedural, and must be justified by agreement, mercantile usage or statute. It must be litigated in the substantive suit where evidence is tendered. Since the applicants never pleaded interest and the trial court never determined it, the issue cannot be introduced by application after judgment.

p. 3
02

Departure from pleadings

Holding

Claiming interest and the 15% legal fees agreement on application, when absent from the plaint of 6th January 2014, constitutes an impermissible departure

Reasoning

Order 2 Rule 6 of the Civil Procedure Rules bars a party from raising new grounds inconsistent with previous pleadings except by amendment. The applicants never pleaded interest under the Land Acquisition Act or otherwise, so neither the trial court nor this court could grant it; parties and court alike are bound by the agenda set in the pleadings.

p. 5
03

Proof of unpaid compensation of Kshs.22,263,249 to 32 applicants

Holding

The claim fails as it is unproved special damages supported by an unsigned, unauthenticated list

Reasoning

A claim for unpaid compensation awards is a liquidated/special damages claim requiring particular pleading and strict proof. The supporting affidavit was sworn by an advocate, not the claimants; the list of 32 applicants was unsigned and no award was annexed, leaving it devoid of probative value.

p. 5
04

Advocate's entitlement to 15% legal fees from the Commission

Holding

The Commission is not liable for the advocate's fees as it was not party to the Legal Fees Agreement

Reasoning

The 15% legal fees agreement was between the applicants and their advocates. Where some applicants were paid directly without deduction, the advocate's remedy lies against his own clients, not against the Commission, which can only release monies to the entitled applicants once received from the acquiring authority.

p. 2

Legal principles established

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  • A claim for payment of interest for the period prior to the filing of a suit is a matter of substantive law which must be pleaded and adjudicated at trial, and cannot be pursued by way of a post-judgment application
  • Parties are bound by their pleadings; raising a new claim inconsistent with or absent from the pleadings without amendment violates the doctrine of departure
  • Special or liquidated damages must not only be particularly pleaded but also strictly proved

Court orders

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  1. 1.The Notice of Motion Application dated 16th October 2020 be and is hereby dismissed
  2. 2.Costs of the Application to the 4th Defendant/Respondent only

Authorities

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Legislation

  • Land Acquisition Act, Chapter 295 Laws of Kenya (now repealed)General (compensation for compulsory acquisition)
  • Constitution of Kenya, 2010Article 40
  • Civil Procedure ActSection 26(1)
  • Civil Procedure Rules, 2010Order 2 Rule 6

Cases cited (7)

  • Highway Furniture Mart Limited v Permanent Secretary Office of The President & another
    [2006] eKLR
  • Gulam Husein v French Somaliland Shipping Co. Ltd
    [1959] EA 25
  • Bengal Magpur Railway Co. v Ruttanji Ramji
    1938 AIR PC 67
  • New Types Enterprises Ltd v Kenya Achand Insurance Company Ltd
    [1988] KLR 380
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Idi Ayub Shabani v City Council of Nairobi
    (1982-88) 1 KAR 681
  • Bonham Carter v Hyde Park Hotel Limited
    [1948] 64 TLR 177
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land compensation disputes (specific provision not cited in the judgment)

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, "Francis Kuria Mwaura & 64 others v Kenya Rural Roads Authority & 3 others [2022] KEELC 484 (KLR)", Case Analysis (2022). Not stated in judgment (Notice of Motion dated 16th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/484/eng@2022-03-10

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