[2025] KEELC 4258 (KLR)

Macharia v Kenya Elctricity Transmission Company Limited ( KETRACO) (Environment and Land Appeal E006 of 2024) [2025] KEELC 4258 (KLR) (5 June 2025) (Judgment)

Neutral citation: [2025] KEELC 4258 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyandarua

Environment and Land Appeal E006 of 2024

JM Kamau, J

June 5, 2025

Between

Michael Mwaniki Macharia

Plaintiff

and

Kenya Elctricity Transmission Company Limited ( KETRACO)

Defendant

Judgment

1. The Applicant filed case No. ELC E14 of 2021 in Engineer Senior Principal Magistrate’s Court on the 16/5/2021. The same is dated 11/5/2021. He averred that at all material times to the suit he was the registered proprietor of the parcel of land known as L.R Nyandarua/Kahuru/2522.

2. The Respondent, while implementing the infrastructural development of erecting power lines between Kenya and Ethiopia, sought acquisition of the land as the pathway which included the Appellant’s aforesaid land.

3. The Appellant received compensation for the 1. 7 Acres affected but did not receive compensation of the private trees cover and other developments on the suit premises. Both parties signed a Property Damage Report ( PDR) on 11/4/2019. There was a physical head count of the trees which gave the figure of compensation as Kshs 5,452,150/= before the trees were harvested. After the other land owners were compensated, the Appellant inquired to know why he was not included in the compensation only to be told that his compensation was subject to re-evaluation. By this time, the trees had long been harvested and it was not practical to fairly access the tree cover.

4. The Respondent wanted to use some crude methodology by basing the compensation on the stumps part of which had long been uprooted, burnt as charcoal or simply degenerated. The Appellant thus refused to participate.

5. The Re-evaluation Report brought down the figure by about a half i.e. Kshs 2,642,100/=. This amount of money was loaded into the Appellant’s Bank Account, Co-Operative Bank of Kenya Naivasha Branch Account No. 01109xxxxxxxxxx with no Supporting documents.

6. The Appellant implored on the Bank to return the money into the Respondent’s Account, which was done. In the premises, the Appellant prays for the payment to himself, the compensation of Kshs 5,452,150/=, an order that no other assessment can competently be done on the suit land L.R No Nyandarua/ Kahuru/2522 after the Respondent allowed the cutting and removal of the tree cover, costs and interest at Court rates.

7. On 29/7/2021 the Respondent filed a statement of Defence dated a month earlier. In the said Defence, the Respondent says that she negotiated with the land owners to grant rights of way over their land to enable the construction of the transmission lines and that the land owners were compensated for limited loss of land, the affected structures, and further, for the affected crops/trees. The compensation process was informed by due diligence undertaken through enumeration followed by verification and disclosure purely to avert any errors that might arise. The rates were provided by the Kenya Forest Service and informed by the maturity of trees. She also said that preliminary payments are made awaiting verification and disclosure. The figure of Kshs 5,452,150/= was an estimation of compensation awaiting verification and the disclosure process which brought down the figure to Kshs 2,642,100/= and the Appellant was properly briefed.

8. The Respondent therefore prayed for: -a.The Defendant (Respondent) already paid amount of Kshs 2,642, 100/= to the Appellant, he declared just compensation.b.In the alternative for a verification/valuation by the Kenya Forest Service be issued.c.Any further orders as the Court deems fit to meet the ends of justice.

9. In the Reply to Defence dated 2/8/2021 and filed on 11/8/2021, the Appellant repeated the contents of his Plaint and said that the process of verification and re-verification must be done with reasons and not at the whims of the Respondent. He also said that the people who did the valuation on the ground were better placed since they viewed the trees unlike the bureaucrats who sat in the office and who never saw the trees. He claimed that he was given an okay to remove the trees after the data collection exercise and that the data generated by the qualified personnel was not indicated as estimation or provisional. He also averred that contrary to what the Respondent said in her Defence, no payment was made since whatever was paid to the Appellant was actually returned to the Respondent.

10. On 18/7/2023 the Plaintiff presented his evidence. He adopted his undated written statement which was in conformity with his averments in the Plaint. In cross-examination, he said that both assessments and verifications were done in 2019. He also said that he did not have an independent Report of the trees. On re-examination, he said that he did not take part in the verification process and that the said trees which were remaining had sprouted and therefore unmeasurable. He then produced the following documents: -1. Copy of Title Deed for L.R Nyandarua/Kahuru/2522. 2.Valuation from serial No. 00673 from the Defendant.3. Letter from the Defendant dated 4/10/20164. Bank slip from Co-operative Bank of Kenya Ltd. for 26/1/2021. 5.Demand letter dated 26/1/2021. 6.Letter by the Defendant dated 15/2/2021. 7.Letter by the Plaintiff to Co-operative Bank of Kenya Ltd.8. Extract of bank statement from Cooperative Bank of Kenya Ltd dated 12/3/2021.

11. The Respondent was represented in adducing evidence by a valuer, Charles Karanja Kariuki, a Land Economist. He relied on his statement dated 29/6/2023 which he adopted as his evidence in chief. He said that in a project such as this, the state corporation negotiates with the landowners for the passing of the construction of electricity transmission and the latter’s land followed by compensation for limited loss of land use and affected structures, trees or crops. For trees, the process is informed by a due diligence undertaken through enumeration followed by verification and disclosure properly to avert any errors that might arise. The said witness gave the affected trees as:a.566 medium blue gums.b.925 young blue gums.c.223 saplings blue gum.d.10 saplings cyprus trees.e.13 saplings wattle trees.

12. He said that in this case the growth sizes were small. The trees had suppressed growth. “We measured the growth using the tape”. He produced the following list of documents.1. Property Damage Report.2. An excerpt of report on verification undertaken between 28th October, 2019 to 2nd November, 2019. 3.Defendant’s letter dated 15th February, 2021. 4.Report on the re-verification undertaken on 25th February, 2021. 5.Emails to Plaintiff’s Counsel dated 19th April, 2021.

13. On Cross-examination, the valuer said that they didn’t give any figures until after the verification process because it is not official. He said that the figure of Kshs. 5 Million was a direct calculation but it was not official and that the period between the 1st assessment i.e. the cutting down of trees to the 1st assessment was 5 months and that he did the re-verification and appended his signature. He said they were relying on the tree stumps. He said that was not a proper assessment. Although they relied on the KFS, he did not attach the scale of figures to his list of documents but said that the same are available in their website for public perusal.

14. The witness also admitted that by the time the Appellant cut down his trees re-verification had not been done. Enumeration only comes after the cutting down of trees. There was no figure provided at the point of cutting down of the trees. The figure in paragraph 15 was an estimate. This is the evidence that was adduced in Court.

15. The Judgment of the Court then followed. It was brief. That the Court lacked original jurisdiction to determine the dispute. The suit was struck out without costs on the ground that the Respondent chose to raise the issue of jurisdiction in his final submissions when he should have raised it at the earliest opportunity possible. The Respondent raised her objection on the ground that under the provisions of Sections 3 (1) and 224 (2) (e) of the Energy Act, 2019 as read together with Regulations 4(a) and 7 of the Energy (Complaints and Dispute Resolution) Regulations, 2012 the original jurisdiction lay with the Energy Complaints and Dispute Resolution Tribunal.

16. The Trial Magistrate said that he was persuaded that indeed a dispute arose which ought to have been handled under the mechanism provided under the Energy Act and that there was nothing on record to show that the Appellant sought to have his grievances resolved under the mechanism provided under the said Act.

17. The Appellant’s first port of call was to invoke the mechanism provided under the Energy Act. Having lost the case based on the issue of jurisdiction, the Appellant appealed to this Court on the following grounds: -1. The learned Magistrate erred in law and in fact by allowing the Respondent to raise a Preliminary Objection on basis of jurisdiction of the Court at the point of final submissions when the Appellant had already submitted and closed his case, shutting him from contesting the freshly introduced evidence introduced through the back door.2. The learned Magistrate erred in law and in fact by openly arguing in the judgment the position of the Respondent instead of remaining a neutral arbiter in the proceedings before him.3. The learned Magistrate erred in law and fact by entering into a deep discourse on provisions of the Energy Act and attendant regulations when the circumstances extremely disadvantaged the Appellant when it would have been equitable to either disallow introduction of fresh issues when one party had already closed his case or suspended the Judgment to allow parties ventilate on these issues raised by one party.4. The learned Magistrate erred in law and fact by failing to find that a party is bound by its pleadings, and for the Respondent to have accepted jurisdiction in its Defence and all subsequent acts of subjecting itself to the jurisdiction of the Court, it was estopped from crafting a new course and cause of action at the tail end of their arguments.5. The learned Magistrate erred in law and fact by failing to take into account that there was part performance by the Respondent who recorded a consent and made payment of Kshs 2,642,100. 00 in Court it now purports lack of jurisdiction, now leaving all such acts by the Court in limbo as to their legality.6. The learned Magistrate erred in law and fact by exhibiting an exceedingly narrow view of the provisions of the Energy (Complaints and Dispute Resolution) Regulations by making it appear that it was only the Appellant who could refer a dispute to a tribunal under the Act when it was open for either party to declare a dispute and resort to any mechanism under the Act.7. The learned Magistrate had no way of determining whether the Preliminary Objections raised a pure point of law or if there were facts that could be only ascertained at trial, and therefore he erred on law and fact. Whether there was a referral of any dispute through any other mechanism was a matter of fact that would have been determined after hearing both parties inter partes over the issue.8. The Honourable Magistrate’s Court erred in law and in fact in failing to appreciate that the same Respondent who raised the Preliminary Objection had filed in Court documents, and specifically a letter dated 15. 2.2021 where they had specifically stated that their policy regarding compensation for tree damages was informed by guidelines provided by the Ministry of Agriculture and Kenya Forest Service effectively distancing themselves on any jurisdiction of any body created by the Energy Act.9. The Honourable Magistrate’s Court erred in law and in fact by misdirecting itself that the Respondent was a body created, guided or falling under the Energy Act Cap 4 of the laws of Kenya when to the contrary the Respondent is created under the provisions of the Companies Act Cap 486 of the Laws of Kenya.10. The Honourable Court erred in law and in fact by grossly misinterpreting case law and authorities regarding regulations in the Energy Sector and what may constitute jurisdiction for purposes of a Preliminary Objection.11. The Honorable Court erred in law and in fact by allowing the Respondent indirectly cure the deficiencies of their two point Preliminary Objection where on realizing the purported authority Kisumu Civil No. 42 of 2021 ( Abidha Nicholus -vs- Attorney General & 7 others ; National Environmental Complaints Committee ( NECC), NEMA, Siaya County, KPLC & Others; (2023) eKLR did not have relevance, the Respondent expanded their horizons to completely different areas and authorities not captured in the Preliminary Objection as filed after the Appellant had tendered their final submission.12. The Honourable Magistrate erred in law and fact in allowing the Respondent’s position to keep mutating from facts to applicable law, making the Defence at the lower Court a moving target.

18. The Appellant consequently urged this Court to set aside the Judgment of the lower Court and issue orders directing a Decision on the substantial issues be rendered and in the alternative this Court goes ahead to award the prayers sought in the Plaint in the lower Court with costs.

19. In the Judgment, the Honourable Trial Magistrate agreed with the Respondent’s submissions based on Sections 3 (1) and 224 (2) (e) of the Energy Act, 2019 and struck out the Appellant’s suit.

20. Section 3 (1) provides that where there is any conflict, the Act shall prevail against any other Act in as far as the following matters are in issue:a.The importation, exportation, generation, transmission, distribution, supply or use of electrical energy.b.The Exploration, production, transportation, distribution and supply of any other form of energy; andc.All works and apparatus for any or all of these purposes.

21. Section 224 (2) (e) of the Energy Act, 2019 saves any subsidiary Legislation issued before the commencement of the Act as long as it is not inconsistent with the Act and the same shall remain in force unless and until it is revoked or repealed by subsidiary legislation under the provisions of Regulations 4 (a) and 7 of the Energy (Complaints and Dispute Resolution) Regulations, 2012.

22. The Appellant’s claim was clear and simple and not multifaceted. Instead of the Appellant taking the money offered to him and proceed to refer the matter to the Energy Complaints and Dispute Resolution Tribunal, he decided to return the money and then filed a case in the lower Court.

23. Petition No. E007 of 2023 in the Supreme Court of Kenya, Nicholusv Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) is clear on what matters can be referred to the ELC when there are other bodies subordinate to this Court with such jurisdiction. Ordinarily, this would be where the case is multifaceted. This is what the Supreme Court held authority in Kisumu Civil No. 42 of 2021 ( Abidha Nicholus -vs- Attorney General & 7 others ; National Environmental Complaints Committee ( NECC), NEMA, Siaya County, KPLC & Others; (2023) eKLR :-...since the Appellant’s claim was multifaceted by his own choice, the most appropriate forum for the determination of his petition was the ELC which would then interrogate and determine them based on such facts and law as shall be placed before it. …….... A Court on its part must not descend to the arena of litigation but instead determine all entrusted matters judicially and in a multifaceted claim above each issue within its jurisdiction including remitting rates of the claim to the relevant statutory body while retaining what was properly before it. In the instant case, the issues raised were well within the ELC’s jurisdiction to determine and there was no reason to either reserve or remit any of them………...”

24. In the instant case, it is not that the ELC has no jurisdiction to hear the matter. Under Section 13 (7) (d) of the ELC Act, No. 19 of 2011, the Court has power to grant the relief of compensation as it deems fit and just.

25. The only issue is that the first port of call is the Energy and Petroleum Tribunal. It is important to note that the Energy Act, 2019 came much later than the ELC Act of 2011. Under section 3 (1) of the Energy Act if there is a conflict between the Act and any other Act, the Energy Act, shall prevail on such matters as transmission, distribution and supply or use of electrical energy which includes compensation. I don’t buy the Appellant’s argument that the learned Trial Magistrate erred by allowing the Respondent to raise a Preliminary Objection on the issue of jurisdiction of the Court at the point of final submissions when the Appellant had already submitted and closed his case. It is true indeed that this point should have been raised at the earliest in order to save the parties time but whatever time it was raised, the same had to be considered by the Court. I want to believe that the learned Trial Magistrate exercised his mind in the best way by not dismissing the Appellant’s case but by striking it out and not even penalizing the Appellant with costs. This leaves the Appellant with the option of still referring the matter to the Energy and Petroleum Tribunal and I hereby refer and remit the matter to the said Tribunal subject to limitation of time and should any of the parties not be satisfied with the Decision of the said Tribunal, the doors of this Court shall remain open. I shall not penalize any party with costs. Each Party shall bear its own costs.

JUDGMENT READ AND DELIVERED AT NYANDARUA THIS 5TH DAY of JUNE, 2025. MUGO KAMAUJUDGEIn the presence of:C/A Samson.Mr. Gachiengo ……………… for the Plaintiff.Mr. Chiboli ……………… for the Defendant.