Mbaraka & 8 others v Kenya Electricity Transmission Company Limited & 2 others; The Governor of the County Government of Tana River & another (Interested Parties)
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
#Key legal issues
#Whether a non-party may apply to set aside a consent order
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
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.
Whether the consent order should be set aside
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
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.
Whether an Interested Party may seek substantive orders such as injunction
No - an Interested Party cannot seek substantive orders or introduce new causes of action not pleaded by the principal parties
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.
Whether the application contravenes Articles 176 and 179 of the Constitution and Section 6 of the County Government Act
No - the Interested Party did not offend those provisions
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.Joinder of the 1st Interested Party allowed by consent (limb spent)
- 2.Application for setting aside the consent order allowed
- 3.Substantive orders for injunction disallowed
- 4.Parties to regularize and account for monies already released to the advocates for the communities
- 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.Each party to bear their own costs
- 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.