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ELCStruck OutEnvironment and Land Constitutional Petition E13 of 2021· [2023] KEELC 20125 (KLR)

Miriam Wanjiru Ndiangui v Kenya Electricity Transmission Co Ltd

Environment and Land Court
19 September 2023
3,694 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 struck out a landowner's constitutional petition over unpaid wayleave compensation, ruling such disputes belong under statutory compensation procedures, not constitutional claims.

What this practically means

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Executive summary

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The petitioner bought plot 11 of LR 1556/341 Naivasha in 2018, developed it, and the respondent gazetted it in 2019 for the Olkaria-Lessos-Kisumu 400/220 KV transmission line project. The respondent paid Kshs. 5,442,950 for the developments after she demolished them, and offered Kshs. 700,000 for limited loss of use of the land, which was never paid. She petitioned for declarations that her Article 40 rights were violated, compensation at current market rates, payment for loss of use, and general damages. The respondent raised a preliminary objection that the court lacked jurisdiction under Section 148(5) of the Land Act and the Land (Assessment of Just Compensation) Rules 2017, and also argued lack of locus standi and that the Energy and Petroleum Tribunal had jurisdiction. The court framed three issues: jurisdiction, entitlement to reliefs, and costs. Relying on Southlake Panorama v KETRACO, it held that the dispute was purely one of compensation for wayleave, raising no constitutional issue; constitutional jurisdiction under Articles 22 and 23 is specific and statutory remedies under Section 148(5) of the Land Act and the 2017 Rules are ample. The petition was struck out with no orders as to costs.

Key legal issues

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01

Whether the Environment and Land Court, sitting as a constitutional court, has jurisdiction over a claim for wayleave compensation framed as an Article 40 violation

Holding

No - the petition raises only a compensation dispute and is struck out for want of constitutional jurisdiction.

Reasoning

Following Southlake Panorama, the court held that although the petitioner framed her claim as an Article 40 violation, the real dispute was non-payment of compensation for limited loss of use of land. Constitutional jurisdiction under Articles 22 and 23 is specific and not open to general claims; Section 148(5) of the Land Act and the 2017 Rules provide ample statutory remedies for such disputes.

p. 7
02

Whether the respondent's preliminary objection on jurisdiction succeeds

Holding

The objection succeeds in substance - the court lacks jurisdiction to determine the compensation dispute.

Reasoning

The respondent's preliminary objection invoked Section 148(5) of the Land Act and the Land (Assessment of Just Compensation) Rules 2017. The court noted the inconsistency between the objection and the respondent's later reliance on Sections 36(3) and (4) of the Energy Act 2019, but ultimately agreed that the dispute was one of compensation outside constitutional jurisdiction.

p. 6

Legal principles established

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  • A dispute that is essentially about the quantum or payment of wayleave compensation does not lie within the constitutional jurisdiction of the court; statutory remedies under Section 148(5) of the Land Act and the Land (Assessment of Just Compensation) Rules 2017 apply.

Court orders

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  1. 1.The present petition is struck out with no orders as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 40, 162
  • Land ActSection 148(5)
  • Land (Assessment of Just Compensation) Rules 2017LN 283 of 2017
  • Energy Act No. 1 of 2019Sections 11, 36(3) and (4)
  • Environment and Land Court ActSection 13
  • Land Registration ActSections 24(a) and 26(1)

Cases cited (12)

  • David Gathu Thuo v Attorney General & another
    [2021] eKLR

    Standards required of a constitutional petition (cited by petitioner)

  • Kenya Power and Lighting Company Limited vs Philip A M Kimondiu
    [2013] eKLR

    Compensation for loss of use of land under wayleave (cited by petitioner)

  • Peter Ndegwa Kiai t/a Pema Wines & Spirits vs Attorney General & 2 Others
    [2021] eKLR

    General damages for constitutional violations (cited by petitioner)

  • Susan Kakai (substituted with Simon Kampala Kakai) vs Ministry of Co-operative Development & 2 others
    [2020] eKLR

    Reliefs for constitutional violations (cited by petitioner)

  • the owners of Motor Vessel 'Lilian S' vs Caltex Oil Kenya Ltd
    [1989] KLR 1

    Jurisdiction - a court must down its tools where it lacks jurisdiction (cited by respondent)

  • Samuel Kamau Macharia and another v Kenya Commercial Bank and 2 Others
    application No. 2 of 2011

    Jurisdiction conferred by the Constitution or statute (cited by respondent)

  • Alfred Njau and Others vs City Council of Nairobi
    [1982] KAR 229

    Locus standi (cited by respondent)

  • Secretary of State for foreign affairs vs Charlesworth Piling & Co. & another
    [1901] The Law Reports (HL & PC), 373

    Claimant failing to supply documents; dismissal sought (cited by respondent)

  • Johnson Mbaabu Mburugu & another v Mathiu Nabea & 9 Others
    [2020] eKLR

    Jurisdiction of the Energy and Petroleum Tribunal (cited by petitioner)

  • Ms Pathologist Lancet Kenya Limited vs Christa Marianne Mission Hospital
    [2021] eKLR

    Standing under Article 22 (cited by petitioner)

  • Erastus Wade Opande vs. Kenya Revenue Authority & Another
    Kisumu HCCA No. 46 of 2007

    Submissions are not evidence on which a case is decided

  • Southlake Panorama Limited v Kenya Electricity Transmission Company Limited & 3 others
    [2021] eKLR

    Wayleave compensation disputes are not matters for the constitutional court

Jurisdiction invoked
Articles 22, 23 and 162 of the Constitution; Section 13 of the Environment and Land Court Act

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, "Miriam Wanjiru Ndiangui v Kenya Electricity Transmission Co Ltd", Case Analysis (2023). Environment and Land Constitutional Petition E13 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20125/eng@2023-09-19

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