Musungu & 8 others (Suing on their own behalf and on behalf of 208 as per the attached list marked schedule A) v Kenya Electricity Transmission Company (Environment & Land Petition 24 of 2021) [2024] KEELC 930 (KLR)
The bottom line
#Landowners lost their bid for higher compensation from KETRACO because the court said they should have used statutory remedies, not a constitutional petition, and proved no coercion.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the nine petitioners to sue representatively
The nine petitioners had locus standi under Article 22(b) and Rule 4 of the Mutunga Rules; no signed consent was required since constitutional petitions are not subject to the Civil Procedure Rules.
Article 22 permits a person acting as a member of, or in the interest of, a group or class of persons to institute proceedings. Rule 4 of the 2013 Practice and Procedure Rules repeats this and does not require executed consents from those represented. The proceedings were not initiated under the Civil Procedure Act, so Order 1 Rules 8 and 13 did not apply, and the court endorsed the approach in Francis Angueyah Ominde.
Constitutional avoidance
The petition offended the doctrine of constitutional avoidance; the compensation dispute could be resolved under the Land Act and Energy Act 2006 without deciding a constitutional question.
Applying the definition in Communications Commission of Kenya v Royal Media Services, the court found the claim was essentially about adequacy of compensation and validity of the compensation contracts. The Land Act (Sections 148 and 150) and the repealed Energy Act 2006 provided full statutory mechanisms for determining quantum and disputes over wayleave compensation, so the claim was not properly laid as a constitutional issue.
Exhaustion of alternative remedies
The petition also offended the doctrine of exhaustion; statutory mechanisms and the RAP grievance redress process were not shown to be inadequate.
Following Speaker v Karume and the Supreme Court in Abidha Nicholus, the court scrutinized the purpose of the petition and found the core claim was enhancement of compensation, which the statutory mechanisms could address. The petitioners did not demonstrate the alternative remedies were inadequate or that the constitutional violations were not mere bootstraps.
Whether the Respondent violated the law in creating the wayleave
The challenge to compliance with Sections 144, 146 and 148 of the Land Act failed because it was not pleaded; parties are bound by their pleadings.
The Amended Petition pleaded undervaluation, non-payment and falsified documents, not procedural non-compliance with the Land Act's wayleave-creation process. Raising the point only in submissions would have unfairly required the Respondent to prove compliance without notice, contrary to Odhiambo, Mutinda Mule and Ole Tukai.
Validity of the compensation agreements
The agreements were valid; the petitioners voluntarily accepted the offers and no intimidation, duress, undue influence or unconscionability was proved.
The letters of offer gave 14 days to consider acceptance, were signed by the landowners, and payments were accepted. No specific instances of coercion were given; the mere presence of security personnel and administrators did not prove coercion. Both the Respondent's schedule and the Clayton Valuers reports had shortcomings, but the Clayton reports lacked comparables, were done five years later, and did not distinguish wayleave compensation from compulsory acquisition.
Alleged violation of Articles 27, 40, 47 and 50
No constitutional violation was proved.
Having found the agreements valid and the statutory processes not challenged as pleaded, the court held that the petitioners had not proved violation of equality, property, fair administrative action or fair hearing rights.
Legal principles established
#- Where a claim for compensation for wayleaves and contracts arising therefrom can be decided on another statutory basis, it is not properly a constitutional issue (constitutional avoidance).
- Alternative statutory and internal dispute-resolution mechanisms for wayleave compensation disputes must be exhausted before invoking constitutional jurisdiction.
- Constitutional petitions are governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which do not require a signed authority for representative petitioners.
- Parties are bound by their pleadings; evidence and submissions at variance with pleadings must be disregarded.
- A court cannot rewrite a contract between parties unless coercion, fraud or undue influence are pleaded and proved.
Court orders
#- 1.The Petition is dismissed
- 2.Costs to the Respondent
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act; Article 22 and 23 of the Constitution; Section 150 of the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musungu & 8 others (Suing on their own behalf and on behalf of 208 as per the attached list marked schedule A) v Kenya Electricity Transmission Company (Environment & Land Petition 24 of 2021) [2024] KEELC 930 (KLR)", Case Analysis (2024). Not stated in the judgment as provided (Petition, Kitui ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/930/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.