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ELCDismissedPetition dated 24/10/2022 (Nakuru ELC)· [2024] KEELC 5600 (KLR)

Elfezouaty & another v Kenya Electricity Transmission Co. Limited (Environment & Land Petition E006 of 2022) [2024] KEELC 5600 (KLR)

Environment and Land Court
31 July 2024
MNMwangi Njoroge
7,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The petitioners, Igal Roni Elfezouaty and Makau Nafuu Ltd, owners in occupation of LR No 425/73 and LR No 425/80 in Naivasha, petitioned the ELC alleging violation of their rights under Articles 27, 40 and 47 of the Constitution after the respondent, KETRACO, took possession of the suit properties in December 2020 for the 400/220/132kv Olkaria-Lessos-Kisumu transmission line, agreed wayleave compensation of Kshs. 20,565,144.60 and Kshs. 19,695,253.76 respectively, but failed to pay. The respondent raised a preliminary objection on jurisdiction, contending that the Energy Act channels such disputes through EPRA and the Energy and Petroleum Tribunal, relying on the Court of Appeal's Abidha Nicholus decision. The court found it had jurisdiction, following its own decision in Maridadi Flowers Ltd v KETRACO, holding that under Section 175 of the Energy Act disputes on ownership, use of land and compensation fall to be determined under land laws, and Section 148(5) of the Land Act confers the determination on the ELC under Article 162(2)(b) and Section 13 of the ELC Act. On the merits, the court found the petitioners had not produced certificates of title or official searches proving ownership, only conveyances and unregistered transfers, with the vendor deceased and his heirs not party. The respondent's insistence on proof of title, registration of easement and protection of public funds under Article 201 was held reasonable and not unconstitutional, and the petitioners failed the Anarita Karimi precision test on Articles 27 and 47. The petition was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction of the ELC over wayleave compensation disputes vis-a-vis the Energy Act dispute resolution mechanism

Holding

The ELC has jurisdiction; the Energy Act's Section 175 refers disputes on ownership, use of land and compensation to the relevant written law, and Section 148(5) of the Land Act allows application to court, which is the ELC.

Reasoning

The court adopted its earlier reasoning in Maridadi Flowers Ltd v KETRACO, distinguishing Abidha Nicholus because there was an agreement and a claim for compensation in this case. Section 175 of the Energy Act directs compensation disputes to relevant land laws, and Section 148(5) of the Land Act vests the determination of compensation disputes in the ELC under Article 162(2)(b) and Section 13 of the ELC Act.

p. 10
02

Whether the respondent's refusal or delay in paying wayleave compensation violated Articles 40(3), 27 and 47

Holding

No violation; the respondent's demand for proof of title and registration of easement was a reasonable safeguard of public funds, and the petitioners failed to prove title or plead violations with precision.

Reasoning

The petitioners produced only conveyances, a deed of partition and unregistered transfers, no certificate of title or official search. The claimant's documents did not prove title; the deceased vendor's heirs were not parties; and risk of double compensation existed. Fiscal prudence and accountability under Article 201 justified the respondent's caution. The Anarita Karimi precision test was not met for Articles 27 and 47.

p. 14

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation and cannot be arrogated beyond what is conferred by law
  • The ELC has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act to determine wayleave compensation disputes where the grievance touches on ownership, use of land and compensation under Section 175 of the Energy Act read with Section 148 of the Land Act
  • A petitioner in a constitutional petition must plead with precision the right violated, the manner of violation and the relief sought
  • Demand by a public body of procedures safeguarding public funds in compensation matters is not unconstitutional

Court orders

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  1. 1.The preliminary objection on jurisdiction is dismissed
  2. 2.The petition dated 24/10/2022 is dismissed
  3. 3.Costs of the petition awarded to the respondent
Jurisdiction invoked
Article 162(2)(b) of the Constitution and 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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Later judgments citing this (1)

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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, "Elfezouaty & another v Kenya Electricity Transmission Co. Limited (Environment & Land Petition E006 of 2022) [2024] KEELC 5600 (KLR)", Case Analysis (2024). Petition dated 24/10/2022 (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5600/eng@2024-07-31

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