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ELCPartially Allowed· [2023] KEELC 71 (KLR)

Kenya Electricity Transmission Company Limited v Malicha (Environment and Land Appeal E20 of 2021) [2023] KEELC 71 (KLR)

Environment and Land Court
19 January 2023
MNMwangi Njoroge
6,489 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nakuru (Mwangi Njoroge, J) from the Senior Principal Magistrate's Court at Naivasha (Hon J Karanja), which on August 18, 2021 had ordered KETRACO to pay the respondent compensation of Kshs 3,000,000 (the full market value of his two-acre parcel), special damages of Kshs 20,000 for a valuation report, and costs. The respondent's land, Naivasha/Oljorai Phase II/815 (later subdivided into three portions, with 10616 affected), was crossed by an electricity transmission line erected under a wayleave. KETRACO appealed on 18 grounds, contending the magistrate had wrongly delved into the propriety of the wayleave creation, wrongly applied compulsory-acquisition standards by awarding 100% compensation for the whole parcel instead of compensation for limited loss of use of the 38.75% affected portion, and wrongly awarded unpleaded special damages. The court framed four issues. It held the trial court misdirected itself in pronouncing on the legality and constitutionality of the acquisition since the plaint sought only pecuniary reliefs and the plaintiff had dropped the injunction prayer. On quantum, applying Section 148(1) of the Land Act, it held compensation is for the land actually affected; 100% compensation is payable only where the owner is denied all use as in compulsory acquisition. It distinguished and declined to follow Tennyson Nyinge Chilyalya & 60 Others v Ketraco. Special damages failed for want of specific pleading. The appeal was allowed in its entirety; the magistrate's decision was set aside and substituted with an order that KETRACO pay the respondent Kshs 411,445.16, with costs of the appeal and the lower court proceedings borne by the respondent. Judgment dated and delivered at Nakuru on January 19, 2023.

Key legal issues

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01

Scope of pleadings and reliefs on wayleave acquisition

Holding

The trial court erred in pronouncing on the legality and constitutionality of the wayleave acquisition when the plaint sought only pecuniary reliefs and never sought declarations that the process was irregular

Reasoning

The plaint was riveted on the dimensions of land affected and the effect on its utility; the reliefs claimed fell far short of seeking declarations of irregularity. The plaintiff also dropped the only injunction prayer. The finding of irregularity never translated into a substantive relief and was therefore in vain.

p. 7
02

Basis of wayleave compensation - affected acreage vs whole parcel

Holding

Compensation is for the use of and damage to land affected by the wayleave, computed on the affected portion only; 100% compensation applies only where the owner is denied all use as in compulsory acquisition

Reasoning

Section 148(1) of the Land Act provides for compensation for use of land and damage to trees, crops and buildings based on a qualified valuer's assessment. The wayleave restricted only planting of trees/crops exceeding 12 feet and structures under the trace; the respondent retained agricultural use of the land. The respondent lacked a valuation of the trace-affected portion only, having admitted his valuation covered the whole parcel.

p. 11
03

Distinguishing Tennyson Nyinge Chilyalya

Holding

The Tennyson decision is distinguished and not followed because an extra 40-metre corridor there denied claimants normal use of their land

Reasoning

Each compensation case must be taken on its own merits. In Tennyson, an extra corridor 40 metres wide was provided around the power lines reducing the claimants' ability to use their land. The respondent failed to show similar facts here. The court declined to follow the decision.

p. 11
04

Special damages

Holding

The appeal against the award of special damages succeeds as the sum was never pleaded as a liquidated amount

Reasoning

Special damages must be specifically pleaded with the figure stated so the other party is prepared for the claim. The respondent's plaint contained no such sum; although receipts were produced, the pleading requirement was not met.

p. 11

Legal principles established

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  • Compensation for a wayleave under Section 148 of the Land Act is compensation for limited loss of land use, computed on the portion of land actually affected by the trace, not 100% of the market value of the whole parcel
  • A first appellate court cannot venture beyond the pleadings; where only pecuniary reliefs are sought, the court should confine itself to those
  • Special damages must be specifically pleaded and proved as a liquidated sum
  • Irregularity in the creation of a wayleave does not convert the wayleave into compulsory acquisition entitling the owner to full market value

Court orders

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  1. 1.The instant appeal is hereby allowed
  2. 2.The decision of the Learned Magistrate dated August 18, 2021 is hereby set aside and substituted with an order directing the appellant to pay the Respondent the sum of Kshs 411,445.16
  3. 3.The costs of this appeal and proceedings in the lower court shall be borne by the Respondent

Authorities

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Legislation

  • Land ActSection 143(1),(2),(3),(4),(5)
  • Land ActSection 148(1),(2),(3),(4),(5),(6); Section 148(5)
  • Land ActSection 133C(6)
  • Land (Assessment of Just Compensation) RulesNot specified
  • Land Registration ActSection 26(1) as read with Section 28(i); Section 28
  • Energy ActSection 183; Section 83
  • Constitution of KenyaArticle 40(3)(b)
  • Civil Procedure Rules 2010Order 4 Rule 2

Cases cited (9)

  • Kenya Power & Lighting Co Ltd v Josphat P Kingara
    2013 eKLR
  • Kenya Electricity Transmission Company Limited v Valeria Helen Wangechi Kigano & 3 others
    [2019] eKLR
  • Kenya Electricity Transmission Company Limited v Rachael Wangechi Watson
    [2018] eKLR
  • Kenya Electricity Transmission Company Limited v Lepton Lengidi
    [2018] eKLR
  • Kenya Power & Lighting Company Limited v B M Wambua
    [2019] eKLR
  • Tracom Limited and another v Hassan Mohamed Adan
    [2009] eKLR
  • Mathew Mutua Mutio v Car and General Kenya Limited
    [2000] eKLR
  • Premier Dairy Limited v Amarjit Singh Sagoo & another
    [2013] eKLR
  • Tennyson Nyinge Chilyalya & 60 Others v Ketraco
    Malindi Case No 63 of 2015
On appeal from
Senior Principal Magistrate's Court, Naivasha
Not stated
Jurisdiction invoked
First appellate jurisdiction over the Senior Principal Magistrate's Court (suit arising under the Land Act, 2012)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Kenya Electricity Transmission Company Limited v Malicha (Environment and Land Appeal E20 of 2021) [2023] KEELC 71 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/71/eng@2023-01-19

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