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ELCPartially AllowedEnvironment and Land Constitutional Petition E3 of 2022· [2023] KEELC 16693 (KLR)

Muchuku v Kenya Electricity Transmission Co. Ltd

Environment and Land Court
30 March 2023
FNFM Njoroge
2,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered KETRACO to deposit Kshs 14.5 million in court after building a power line on private land without paying the owner.

What this practically means

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Executive summary

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This ruling by FM Njoroge, J of the Environment and Land Court at Nakuru determined the petitioner's Notice of Motion dated May 17, 2022 in a constitutional petition seeking payment of wayleave compensation. The petitioner, registered owner of Naivasha/Maraigushu Block 32/80, 81, 82, 83 and LR No 425/65, sought an order compelling the respondent, Kenya Electricity Transmission Co. Ltd (KETRACO), to deposit Kshs 14,495,270.96 into court or an interest-earning account pending determination of the petition. He relied on letters of offer dated December 18, 2020 which he accepted, alleging KETRACO took possession on December 24, 2020, completed the Olkaria-Lessos-Kisumu transmission line, but never paid the compensation, contrary to Article 40(3) and (4) of the Constitution and Section 173(3) of the Energy Act. The respondent raised a preliminary objection (ruled on January 19, 2023), grounds of opposition and a replying affidavit, contending the court lacked jurisdiction, the claim belonged before the Energy and Petroleum Tribunal, the offer letters were not contracts under Section 3(3) of the Law of Contract Act, and that compensation formalities remained incomplete. The court framed a single issue: whether the respondent should be directed to deposit the sum claimed. Noting the respondent's admission that it constructed the transmission line on the suit properties and had not compensated the petitioner, the court held it was in the interest of justice to order the deposit. The application was allowed; the respondent was ordered to deposit Kshs 14,495,270.96 in court pending hearing of the petition, costs were left in the cause, and the petition was set for mention on May 3, 2023 to ascertain compliance.

Key legal issues

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01

Whether the respondent should be ordered to deposit the claimed wayleave compensation pending trial

Holding

Yes - the respondent admitted entry and construction but non-payment, so a deposit into court was ordered pending hearing of the petition

Reasoning

The petitioner produced certificates of lease and letters of offer dated December 18, 2020 showing an offer of Kshs 14,495,270.96 which he accepted. The respondent admitted entering the land with consent, constructing the transmission line, and not yet paying compensation, attributing the delay to incomplete compensation formalities. The court held that in these circumstances the interest of justice favoured securing the funds in court rather than leaving the petitioner uncompensated while the respondent enjoyed the use of the land.

p. 5

Legal principles established

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  • Where a respondent admits taking possession of land and constructing infrastructure but has not compensated the owner, it is in the interest of justice to order deposit of the claimed compensation pending determination of the petition

Court orders

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  1. 1.Pending hearing and determination of the petition, the respondent is ordered to deposit in court the sum of Kshs 14,495,270.96
  2. 2.Costs of the application to be in the cause
  3. 3.Petition to be mentioned on May 3, 2023 to ascertain compliance

Authorities

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Legislation

  • Constitution of KenyaArticle 23(1)
  • Constitution of KenyaArticle 40(3) and (4)
  • Constitution of KenyaArticle 22(1), 23(3), 201(e)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 23(1); rule 4(2)(ii)
  • Energy ActSections 148, 173(3), 175
  • Land ActSections 148, 150
  • Environment & Land Court Act 2011Section 7(d)
  • Law of Contract Act, Cap 23Section 3(1), 3(3)

Cases cited (6)

  • Sumayya Athmani Hassan v Paul Masinde Simidi & Another
    [2019] eKLR

    Prayers sought must have constitutional underpinning

  • Macfoy v United Africa Co Ltd
    [1961] 3 ALL ER

    A null order is void ab initio

  • Hellen Chelel Mulama v Kenya Electricity Transmission Company Limited (KETRACO)
    [2018] eKLR

    Wayleave compensation under Articles 40(3), (4) and 23(3)(b)

  • Center for Rights Education and Awareness (CREAW) & 7 Others v Attorney General
    [2011] eKLR

    Constitutional violations cited by petitioner

  • Giella v Cassman Brown & Company Limited
    [1973] EA 358

    Conditions for interlocutory injunctions

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR, Supreme Court Application No 5 of 2014

    Criteria for grant of conservatory orders

Jurisdiction invoked
Article 23(1) of the Constitution of Kenya; Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Muchuku v Kenya Electricity Transmission Co. Ltd", Case Analysis (2023). Environment and Land Constitutional Petition E3 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16693/eng@2023-03-30

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