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ELCPartially AllowedNotice of Motion dated 12/4/2022 (Petition, Naivasha/Nakuru)· [2022] KEELC 3365 (KLR)

Njoroge v Kenya Electricity Transmission Co. Ltd (Land Case Petition E2 of 2022) [2022] KEELC 3365 (KLR)

Environment and Land Court
15 June 2022
MNMwangi Njoroge
2,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Naivasha landowner won an order forcing KETRACO to deposit KES 13.58 million wayleave compensation into an interest-earning account while the ownership dispute is decided.

What this practically means

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Executive summary

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The petitioner moved the court by Notice of Motion dated 12/4/2022 seeking orders that the respondent deposit into court KES 13,583,581.20, being compensation offered for a wayleave through her property LR No. 425/87 in Naivasha Sub-County, Nakuru County, pending hearing of her constitutional petition. She alleged that the respondent constructed an electric power transmission line through her land, took possession on or about 4/12/2020, completed the project but failed to pay the offered compensation, in violation of Articles 27, 40 and 47 of the Constitution, and that under Article 40(3) and (4), Section 173 of the Energy Act and Part VIII of the Land Act 2012 the sum should be secured in a compensation fund or joint interest-earning account. The respondent, through its land economist Samuel Kirera, disputed the petitioner's title, asserted the land was registered in a third party's name, denied any contract or promise to her, and contended that compensation was payable only upon presentation of the title. Relying on Prigal Ltd & Michael Mwangi Muturi v KETRACO, where Mutungi J ordered compensation deposited into a joint interest-earning account amid a title dispute, the court found the case indistinguishable. Noting the respondent's admission that its project affected the land and that compensation for the mother parcel was not shown to have been paid, and that only apportionment might remain in issue, the court allowed the application. It ordered the sum deposited within 30 days into a joint fixed interest-earning account at Co-operative Bank of Kenya Ltd operated by the parties' advocates' firms, to remain in force pending determination of the petition, with costs in the cause.

Key legal issues

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01

Whether an interlocutory order for deposit of offered compensation is warranted where title is disputed

Holding

Yes - following Prigal, the compensation should be deposited in a joint interest-earning account pending determination of the ownership dispute

Reasoning

The court found the case indistinguishable from Prigal Ltd v KETRACO, where Mutungi J ordered a compensation deposit into a joint interest-earning account amid a title dispute. Despite the respondent disputing the petitioner's title and denying any promise to her, the respondent admitted its project affected the suit land while part of a larger parcel and did not insist compensation for the mother parcel was paid. Given extensive subdivisions and amalgamations and no denial that compensation was offered, only apportionment may remain at issue.

p. 4
02

Whether the replying affidavit filed out of time and without leave should be expunged

Holding

No - the court declined to expunge it in the interests of justice

Reasoning

The petitioner sought to have the respondent's replying affidavit expunged because it was filed out of time and without leave. The court weighed the interests of justice and elected to consider the replying affidavit, just as it considered the petitioner's supplementary affidavit, rather than strike it out on a procedural technicality.

Legal principles established

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  • Where a transmission line has been constructed through land and compensation has been offered but ownership is disputed, the court may order the compensation deposited into a joint fixed interest-earning account pending determination of ownership, protecting both the landowner's interest and public funds

Court orders

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  1. 1.Pending hearing and determination of the Petition, the respondent shall within 30 days deposit KES 13,583,581.20 for Wayleave through LR No. 425/87 situate in Naivasha Sub-County, Nakuru County into a joint fixed interest earning account at Co-operative Bank of Kenya Ltd to be opened and operated in the names of the parties' advocates' firms
  2. 2.The account shall remain in force pending determination of the petition and/or until further orders of the court
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 27, 40, 40(3) and (4), 47
  • Energy ActSections 173, 175
  • Land Act 2012Part VIII

Cases cited (4)

  • Giella vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya
    [2003] KLR 125
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Prigal Ltd & Michael Mwangi Muturi v Kenya Electricity Transmission Company Ltd
    [2021] eKLR
Jurisdiction invoked
Articles 27, 40, 47, 40(3) and (4) of the Constitution of Kenya 2010; Section 173 of the Energy Act; Part VIII of the Land Act 2012

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, "Njoroge v Kenya Electricity Transmission Co. Ltd (Land Case Petition E2 of 2022) [2022] KEELC 3365 (KLR)", Case Analysis (2022). Notice of Motion dated 12/4/2022 (Petition, Naivasha/Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3365/eng@2022-06-15

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