Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPetition 9 of 2021· [2023] KEELC 16370 (KLR)

Mbaraka & 8 others v Kenya Electricity Transmission Company Limited & 2 others; The Governor of the County Government of Tana River & another (Interested Parties)

Environment and Land Court
14 March 2023
4,759 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that compensation for community land must go to the county government's trust account, not private advocates' accounts.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Malindi (Odeny J) determined a Notice of Motion dated 15th October 2021 by the Governor of Tana River County (1st Interested Party) seeking to set aside a consent order of 27th July 2021 and to restrain payment of Ksh 171,394,662.71 compensation for limited loss of land use arising from the Garsen-Hola-Bura-Garissa transmission line wayleave across unregistered community land. Joinder of the Governor was allowed by consent. The court held that under Section 80 of the Civil Procedure Act a non-party aggrieved by a consent order may apply to set it aside, and that the Governor, as trustee of unregistered community land under Article 63(3) of the Constitution and the Community Land Act framework, was properly enjoined. The court found the consent contained a mistake in directing compensation into the Petitioners' advocate's account, contrary to the statutory requirement that such monies be held by the county government in a special interest earning account, and that the consent was irregularly adopted with no record of the coram. However, applying Supreme Court authority, it held an Interested Party cannot seek substantive orders: the injunction prayers, not anchored in pleadings, were disallowed. The court allowed the setting aside of the consent, directed the parties to regularize and account for monies already released, and ordered the outstanding balance (about Ksh 68,557,865) paid into a special interest earning account opened by the County Government. Each party was to bear their own costs.

Key legal issues

#
01

Whether a non-party may apply to set aside a consent order

Holding

Yes - Section 80 of the Civil Procedure Act allows any person aggrieved by a decree or order to seek review, and the Governor as trustee of unregistered community land was entitled to apply

Reasoning

The court adopted the Presbyterian Foundation holding that Section 80 is wide enough to accommodate an applicant who was not party to the consent. Once a consent becomes an order or judgment of the court it falls within Section 80. The consent here impacted the Interested Party who holds the mandate to govern community land on behalf of community members within its jurisdiction.

p. 9
02

Whether the consent order should be set aside

Holding

Yes - the consent contained a mistake in allowing compensation to be paid into the Petitioners' advocate's account contrary to statute, and was irregularly adopted

Reasoning

The court found the payment of compensation into an advocate's account offended Section 6 of the County Government Act and Sections 2 and 109 of the Public Finance Management Act, which require such monies to be held by the county government in a special interest earning account. There was also no record of the coram at which the consent was adopted, making the adoption irregular.

p. 9
03

Whether an Interested Party may seek substantive orders such as injunction

Holding

No - an Interested Party cannot seek substantive orders or introduce new causes of action not pleaded by the principal parties

Reasoning

Relying on County Assembly of Mandera and Sophy Njiiri, the court held that a party joined as an Interested Party cannot upstage the principal parties or introduce new causes of action. The injunction prayers were not anchored in any substantive pleadings and could not stand.

p. 9
04

Whether the application contravenes Articles 176 and 179 of the Constitution and Section 6 of the County Government Act

Holding

No - the Interested Party did not offend those provisions

Reasoning

The court found no contravention of the constitutional framework on devolved county governance. The Governor, as chief accounting officer with responsibility for public funds and trustee of unregistered community land, was properly before the court in a public interest dispute affecting over 300,000 community members.

Legal principles established

#
  • A person who is not a party to a consent order may apply to have it set aside under Section 80 of the Civil Procedure Act
  • Compensation for compulsory acquisition of unregistered community land must be held in trust by the county government in a special interest earning account
  • An Interested Party cannot seek substantive orders or introduce new causes of action

Court orders

#
  1. 1.Joinder of the 1st Interested Party allowed by consent (limb spent)
  2. 2.Application for setting aside the consent order allowed
  3. 3.Substantive orders for injunction disallowed
  4. 4.Parties to regularize and account for monies already released to the advocates for the communities
  5. 5.Balance of the compensation due from the 1st Respondent to be paid into a special interest earning account opened for that purpose by the County Government
  6. 6.Each party to bear their own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 63(2), 63(3), 63(4), 63(5), 176, 179
  • County Government ActSection 6
  • Community Land ActPreamble; Section 6(1)
  • Public Finance Management Act, 2015Sections 2 and 109
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 21 [1]

Cases cited (14)

  • Esther Targok Ayabei & another v Kihenjo Njuguna & another
    [2019] eKLR

    Consent orders may be set aside for fraud, mistake or misrepresentation

  • Wasike v Wamboko
    (1988) KLR 429

    Grounds for setting aside consent orders/judgments

  • Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others
    [2013] eKLR

    Preliminary objections must be points of law; doctrine of functus officio

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696

    Definition and scope of preliminary objections

  • Governor of Kericho County v Kenya Tea Development Agency & 30 others Ex-Parte Ktda Management Services Limited
    [2016] eKLR

    Right of Governor to be joined to ventilate issues on public funds

  • Presbyterian Foundation v Charles Ndungu & 3 others
    [2016] eKLR

    A non-party may apply to set aside a consent order under Section 80

  • Board of Governor Changamwe Secondary School v Commissioner of Lands & 2 others
    [2015] eKLR

    An Interested Party entitled to apply for setting aside or review of a consent

  • J.M Njenga & Co Advocates v Francis Chege Maina & 5 Others; John Maina & 2 Others (Proposed Interested parties)
    [2020] eKLR

    Threshold for setting aside consent orders by a non-party

  • Michael Kibui & 2 Others v Impressa Construuzioni Giuseppe Maltauro S.P.A & 2 Others
    [2016] eKLR

    Threshold for setting aside consent orders

  • Florence Nafula Ayodi & 5 others v Jonathan Ayodi Ligure v John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (Applicants/Intended Interested Parties)
    [2021] eKLR

    An intended interested party cannot pray for orders beyond leave to be enjoined

  • County Assembly of Mandera County v Governor, Mandera County & another
    [2020] eKLR

    A party yet to be enjoined lacks capacity to seek substantive orders

  • Sophy Njiiri v National Bank of Kenya Limited & another; James Mwangi Njiiri (Interested Party)
    [2020] eKLR

    An interested party cannot seek substantive orders as a principal participant

  • Brooke Bond Liebig v Mallya
    (1975) EA 266

    Circumstances in which a consent judgment may be set aside

  • Board of Trustees National Social Security Fund v Micheal Mwalo
    [2015] eKLR

    Court will not interfere with consent judgment except on grounds for rescinding a contract

Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court; review under Section 80 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mbaraka & 8 others v Kenya Electricity Transmission Company Limited & 2 others; The Governor of the County Government of Tana River & another (Interested Parties)", Case Analysis (2023). Petition 9 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16370/eng@2023-03-14

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