Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided (Petition, Kitui ELC)· [2024] KEELC 930 (KLR)

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)

Environment and Land Court
22 February 2024
17,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~70 min to read original · ~4 min brief

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

#
The nine petitioners, landowners in Mwingi Sub-County, Kitui County, petitioned the Environment and Land Court at Kitui against Kenya Electricity Transmission Company Limited (KETRACO), alleging that compensation for the 30-metre wayleave trace created for the Kindaruma-Mwingi-Garissa 132KV transmission line was inadequate, that some owners were unpaid or their documents falsified, and that the compensation agreements were vitiated by duress, undue influence and unconscionability. They sought declarations that the agreements were null and void, a fresh court-supervised valuation, compensation of Kshs. 247,385,989/-, a mandatory injunction and general damages, alleging violations of Articles 27, 40, 47 and 50. KETRACO raised a preliminary objection on locus standi and argued constitutional avoidance and exhaustion. The court held the nine petitioners had standing under Article 22(b) and Rule 4 of the Mutunga Rules, since constitutional petitions are not governed by the Civil Procedure Rules. However, it found the claim - essentially a dispute over the quantum and validity of wayleave compensation - offended the doctrines of constitutional avoidance and exhaustion, as the Land Act (Sections 148 and 150), the repealed Energy Act 2006 and the Resettlement Action Plan grievance mechanisms provided adequate alternative remedies, which the petitioners did not show were inadequate. The claim that the Respondent breached Sections 144, 146 and 148 of the Land Act failed as it was not pleaded. On the merits, the court found the offers were voluntarily accepted over a long period, no coercion or unconscionability was proved, both valuations were flawed but the Clayton Valuers reports were unsupported and five years late, and a court cannot rewrite contracts. No violation of Articles 27, 40, 47 or 50 was established. The petition was dismissed with costs to the Respondent on 22nd February 2024.

Key legal issues

#
01

Locus standi of the nine petitioners to sue representatively

Holding

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.

Reasoning

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.

p. 12
02

Constitutional avoidance

Holding

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.

Reasoning

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.

p. 19
03

Exhaustion of alternative remedies

Holding

The petition also offended the doctrine of exhaustion; statutory mechanisms and the RAP grievance redress process were not shown to be inadequate.

Reasoning

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.

p. 23
04

Whether the Respondent violated the law in creating the wayleave

Holding

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.

Reasoning

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.

p. 25
05

Validity of the compensation agreements

Holding

The agreements were valid; the petitioners voluntarily accepted the offers and no intimidation, duress, undue influence or unconscionability was proved.

Reasoning

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.

p. 29
06

Alleged violation of Articles 27, 40, 47 and 50

Holding

No constitutional violation was proved.

Reasoning

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.

p. 31

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. 1.The Petition is dismissed
  2. 2.Costs to the Respondent

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 27, 40, 47, 50, 159(2)(c), 162(2)(b), 258
  • Land Act, 2012 (No. 6 of 2012)Sections 2, 138(2), 143-149 (144, 146, 148), 150, 162
  • Environment and Land Court ActSection 13
  • Energy Act, 2006 (No. 12 of 2006) (repealed)Sections 4, 6, 26, 46, 47, 48, 107
  • Energy Act, 2019repealing provision
  • Wayleaves Act, Cap 292Section 6(2)
  • Land Acquisition Act, Cap 295general
  • Registered Lands Actgeneral
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 4
  • Land (Assessment of Just Compensation) Rules, 2017Section 4(2)(b)
  • Civil Procedure RulesOrder 1 Rules 8 and 13

Cases cited (43)

  • Kefa Nyaga Kariuki v. Office Commanding Station Kikuyu Police Station & 3 others: Welton Kibiwott Tubei (Interested Party)
    (2022) eKLR
  • Sella Rose Anyango v Attorney General & Others
    (2021) eKLR
  • Otolo Margaret Kanini vs Attorney General & 4 others
    (2022) eKLR
  • Moses Onchiri Kenya Ports Authority & 4 Others
    (2017) eKLR
  • Evans Makoro & 32 members of the County Assembly of Kisii v Kisii County Assembly Service Board & 2 others
    (2017) eKLR
  • Glencore Grain Ltd vs TSS Grain Millers
    (2002) 1 KLR 606
  • Comroad Construction Company / Comroad Construction & Equipment Ltd V Iberdrola Engineering & Construction Co.
    (2020) eKLR
  • Machareus Obaga Anunda v Kenya Electricity Transmission Co. Ltd
    (2015) eKLR
  • Kenya Electricity Transmission Co. Ltd v Lpeton Lengidi & 3 Others
    (2018) eKLR
  • Tennyson Nyinge Chilyalya & 60 Others V. Kenya Electricity Transmission Company Ltd
    (2020) eKLR
  • Robert N. Gakuru & Others v Governor, Kiambu County & 3 Others
    (2014) eKLR
  • Richard Owuor & 2 Others v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries and Co-operatives & 7 Others
    (2021) eKLR
  • Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others
    (2015) eKLR
  • CIS v Director Crawford International School & 3 Others
    (2020) eKLR
  • LTI Kisii Safari Inns Ltd & 2 Others v Deutsche Investitions-Und Enwicklungsgellschaft ('Deg') & others
    [2011] eKLR
  • Kaniki Karisa Kaniki v Commercial Bank Ltd & 2 Others
    (2016) eKLR
  • Emmanuel Nyongesa & 34 Others v County Government of Trans Nzoia
    (2021) eKLR
  • Cod & Another v Nairobi City Water & Sewerage Company
    (2015) eKLR
  • Eric Kiprotich Soi & Another v Director General Nairobi Metropolitan Services
    (2022) eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Vitalis Ouma Osan v Kenya Power & Lighting Company Limited
    (2021) eKLR
  • Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 Others (Interested Parties)
    (2021) eKLR
  • Abidha Nicholus v The Attorney General & Others
    Petition No. E007 of 2023, judgment dated 28th December 2023
  • Githunguri Dairy Farmers Co-operative Society Ltd v Attorney General & 2 Others
    (2016) eKLR
  • National Bank Kenya Limited vs Pipeplastic Samsolit (K) Limited & Another / National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd
    (2001) eKLR; (2002) 2 E.A. 503
  • Euromec International Limited v Shandong Taikai Power Engineering Company Limited
    (Civil Case E527 of 2020) [2021] KEHC 93 (KLR)
  • Elizabeth O. Odhiambo v South Nyanza Sugar Co. Ltd
    (2019) eKLR
  • Kenya Electricity Transmission Company Limited v James Kinoti M'twerandu
    (2018) eKLR
  • Dobbin Mutiso Ndolo v Kenya Electricity Transmission Company Limited
    (2020) eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Katra Jama Issa v Attorney General & 3 others
    [2018] eKLR
  • Tony Munene v Commissioner of Lands & 5 Others
    [2012] eKLR
  • Harrikisoon v Attorney General of Trinidad and Tobago
    [1980] AC 265
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • David Sironga Ole Tukai v Francis Arap Muge & 2 others
    [2014] eKLR
  • Southlake Panorama Limited v Kenya Electricity Transmission Company Limited & 3 others
    [2021] eKLR
  • Francis Angueyah Ominde & another v Vihiga County Executive Committee Members Finance Economic Planning and 3 others; Controller of Budget and 10 others (Interested Parties)
    [2021] eKLR
  • Sharok Kher Mohamed Ali & Another V Southern Credit Banking Corporation Limited
    [2008] eKLR
  • Madhupaper International Ltd & Another V Kenya Commercial Bank Ltd
  • William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties)
    [2020] eKLR
  • United Bank of India vs Satyawati Tondon & Others
    (2010) 8 SCC
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander v. Tennessee Valley Authority
    297 U.S. 288, 347 (1936)
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.