https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1133

Mavoloni Company Ltd v Tanathi Water Services Board (Civil Appeal E062 of 2020) [2026] KECA 1133 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1133 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E062 of 2020 W Karanja, K M'Inoti & F Tuiyott, JJA June 12, 2026 Between Mavoloni Company Limited Appellant and Tanathi Water Services Board Respondent (Appeal from the judgment and decree of the High Court of Kenya at Machakos (Mutende, J.) dated 26th August 2015 in ELCC No. 207of 2013, formerly HCCC 148 of 2012 Environment & Land Case 27 of 2013 ) Judgment 1.The appellant, Mavoloni Company Limited, is aggrieved by the judgment and decree of the High Court of Kenya Machakos, (Mutende, J.) dated 26th August 2015 by which the court dismissed with costs its suit against the respondent, Tanathi Water Services Board, for Kshs. 33,907,000.00, costs and interest. 2.By a plaint 7th May 2012, the appellant pleaded that in or about 2009, the respondent acquired the appellant’s property known as Ithanga/Gituamba/Mavoloni Block 2/205 (the suit property) measuring approximately 5 acres, for construction of the Yatta Dam on the Thika River, but failed to value or pay compensation for the same. 3.The appellant claimed from the respondent Kshs. 33,907,000.00 being the value of the land and developments thereon, made up as follows:i.Value of the land - 1,482,000.00ii.Pipes and piping, 30% G.I.6” - 17,000,000.00iii.Pipes and piping, 70% PVC 6” - 14, 165,000.00iv.Grading shed, store, double pit latrine and charcoal cooler - 317,000.00v.Grading shed, security house and double pit latrine - 934,000.00Total - Kshs. 33,907, 4.The respondent filed a defence dated 15th May 2012 and denied the appellant’s claim, and in particular that it had acquired or taken possession of the suit property. The respondent further pleaded that it had entered into an agreement for sale with the appellant and that it paid the appellant in full in accordance with the said agreement and fully discharged its liability. 5.The suit was heard by Mutende, J., with the appellant calling four witnesses while the respondent called one witness. The trial court framed three issues for determination, namely:i.Whether the appellant and the respondent had a contractual relationship;ii.Whether the compensation made to the appellant was unjust; andiii.Whether the respondent was liable to compensate the appellant for the suit property. 6.On the first issue, the learned judge found that there was a valid contract for sale between the parties within the meaning of section 3 of the Law of Contract Act, but that the suit property was not included in the agreement for sale because it was not affected by the Yatta dam. 7.On the second and third issues, the learned judge held that the appellant was not entitled to compensation for property that the respondent had not acquired. Accordingly, the court dismissed the appellant’s suit with costs. 8.The appellant was aggrieved and lodged the present appeal, which is premised on eleven grounds of appeal set out in the memorandum of appeal dated 14th February 2020. However, in its written submissions dated 13th April 2021, the appellant reduced the eleven grounds into three issues, in which it contended that the trial court erred by:i.Holding that the appellant was not entitled to compensation for the suit property;ii.Ignoring the appellant’s evidence and evidence favourable to its case; andiii.Holding that the developments in issue were on the suit property while they were in a different parcel known as Gatuanyaga/Ngoliba Block 2/206. 9.On the first issue, Mr. Mutava, learned counsel for the appellant, submitted that the valuation report dated 11th December 2009 was prepared by the appellant in consultation with the respondent and showed that the original title, Ithanga/Gituamba/Mavoloni Block 1/11154/2 together with the developments thereon, was valued at Kshs 144,801,708.00. On the other hand, the respondent relied on a valuation report dated 21st June 2011 which indicated the value to be Kshs. 110, 361,348.00. Counsel submitted that the respondent’s report was prepared without consultation with the appellant and that it omitted developments on the property, which were included in the appellant’s valuation report, totaling to Kshs 32,425,000.00. 10.Counsel further submitted that the respondent did not compensate the appellant for the suit property (Ithanga/Gituamba/Mavoloni Block 2/205) although it took possession of the same. It was contended that the respondent was obliged to compensate the appellant for the suit property measuring 5 acres and valued at Kshs. 1,482,000.00 because the suit property was completely submerged by the dam and was no longer available for use by the appellant. 11.Turning to the second issue, counsel submitted that the trial court failed to consider all the evidence adduced by the appellant, in particular evidence showing that the valuation report relied upon by the respondent was prepared by a civil engineer rather than by a land valuer, and without the involvement or participation of the appellant. 12.On the last issue, counsel submitted that the appellant’s valuation report of the original title represented the correct value of the subsequent subdivisions and the developments thereon. It was contended that valuation report did not include the suit property, which only became an issue after it was submerged by the dam. While admitting that the suit property was not the subject of the agreement for sale between the appellant and the respondent, counsel submitted that the respondent was entitled to compensation for the suit property after it was submerged by the dam. 13.Counsel further submitted that the trial court misapprehended the evidence when it held that the developments were on the suit property and that in the circumstances, this Court is not bound to accept the conclusions of the trial court. For the foregoing reasons, the appellant urged the Court to allow the appeal with costs. 14.Mr. Muuo, learned counsel holding brief for Mr. Mulekyo for the respondent, opposed the appeal vide written submissions dated 6th October 2020. The respondent took issue with the competence of the appellant’s record of appeal, which it contended was filed on 14th February 2020 but served on 7th July 2020, outside the prescribed period of seven days. It was contended that the said record was filed in violation of rule 90 (1) of the Court of Appeal Rules 2010. 15.On the merits of the appeal, the respondent submitted that both parties willingly and freely entered into an agreement for sale of four properties on 30th October 2011 and that the respondent did not compulsorily acquire the properties vide section 78 of the repealed Water Act, 2002. According to counsel, the sold properties were:i.Gatuanyaga/Ngoliba Block 2/206;ii.Gatuanyaga/Ngoliba Block 2/207;iii.Gatuanyaga/ Ngoliba Block 2/208; andiv.Gatuanyaga/Ngoliba Block 2/209. 16.The respondent further submitted that it paid the appellant the purchase price in full and took possession of the said properties. It was contended that the suit property was not among the properties that the respondent purchased from the appellant; was still registered in the name of the appellant; and that the appellant was in possession thereof. 17.The respondent urged that the appellant had failed to discharge the burden of proof on it to demonstrate that the respondent had acquired the suit property as pleaded. Further, it was contended that the suit property was, in any event, unaffected by the dam project because it was outside the surveyed project area and therefore there was no basis upon which the respondent could pay compensation to the appellant. For the foregoing reasons, the respondent urged the Court to dismiss the appeal with costs. 18.We have carefully considered this appeal, which is a first appeal in terms of rule 31(1) (a) of the Court of Appeal Rules. That provision obliges us to re-appraise the evidence and to draw our own independent inferences of fact. In Seascapes Ltd v. Development Finance Co. of Kenya Ltd. [2009] KLR 384, the Court explained its approach in a first appeal as follows:“As the first appeal, we are enjoined to revisit the evidence that was before the superior court afresh, analyse it, evaluate it and come to our own independent conclusion, but always bearing in mind that the trial court had the benefit of seeing the witnesses, hearing them and observing their demeanour and giving allowance for that.”That is the approach that we shall adopt. 19.Before we delve into the merits of the appeal, we must first dispose of the respondent’s objection to the competence of the appeal on the basis of the alleged late service of the record of appeal outside the period prescribed by rule 90 (1) of the Court of Appeal Rules 2010, which were in force when this appeal was filed. That rule, which is now rule 92(1) of the Court of Appeal Rules, 2022 required an appellant to serve a copy of the memorandum and record of appeal upon the respondent before or within seven days after lodgement in the registry. 20.Where an appellant did not comply with that provision, the respondent’s solution lay in rule 84 of the Court of Appeal Rules 2010. That rule allowed the respondent to apply to strike out the appeal on the grounds that the appellant had failed to take an essential step within the prescribed time. By dint of the proviso to rule 84, the respondent was obliged to make the application to strike out the record of appeal within 30 days from the date of service of the record of appeal. 21.In the present appeal, the respondent claims that the record of appeal was served upon it on 7th July 2020. The respondent did not apply to strike out the record of appeal within 30 days of service, or at all. Having failed to do so, the proviso to rule 90(1) barred the respondent, in absolute terms, from raising the issue. 22.In Magnate Ventures Ltd v. Majestic Security Services Ltd & 4 Others [2025] KECA 2042 (KLR), this Court reasoned as follows on a similar issue:“To sustain an application to strike out the notice of appeal, the applicant was required by rule 86 to present the application within 30 days from the date of service of the notice of appeal. The proviso to that rule provided as follows in mandatory terms:“Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the car may be.”The 1st respondent served the notice of appeal on the applicant on 6th March 2024 and the applicant filed the application to strike out on 7th April 2025, which was far beyond the prescribed 30 days. Accordingly, the applicant has no basis for challenging the competence of the notice of appeal.” 23.Accordingly, there is no merit in the respondent’s objection. 24.As regards the merits of the appeal, in our view this appeal turns on only one issue, namely whether the appellant proved its case as pleaded in the High Court. 25.In its plaint, the appellant pleaded as follows:“3.The Plaintiff's claim against the Defendant is for Kshs. 33,907,0007/= being the value of fixed improvements and land acquired by the Defendant from the Plaintiff for compensation purposes for the construction of the proposed Yatta Dam along Thika River in 20094.The Plaintiff aver that Ithanga/Gituamba/Mavoloni Block 2/205 measuring 5 acres was not valued and/or compensated for although the Defendant took possession of the same on the ground whose value is Kshs. 1,482,000/= 26.The evidence on record indicates that the appellant and the respondent entered into an agreement for sale of 95 hectares “together with the improvements thereon” to be excised from the appellant’s land known as Gatuanyaga/Ngoliba/Block 2/209 measuring 105.0 hectares. The agreed purchase price was Kshs. 110,361,348.00. The agreement for sale was produced in court as an exhibit. 27.Joseph Munyao Mutisya, the appellant’s chairman who testified as PW1, confirmed that the parties entered into the agreement for sale willingly and freely and that the suit property, measuring approximately 2 hectares was not included in the agreement for sale. He testified that the parcel occupied by the dam was Gatuanyaga/Ngoliba Block 2/209. Nevertheless, it was his evidence that the suit property fell within the area occupied by the dam and that the respondent was obliged to compensate the appellant for it. 28.PW2, Peter Munyao Muasya testified on the valuation of the assets on the land that was affected by the dam, and stated that the respondent did not pay for those assets. 29.PW3, Joseph Wambua Munusya, who described himself as a land consultant, testified that he did not value the suit property but, nevertheless, that the appellant was entitled to compensation. Although admitting that there was no Gazette Notice expressing the respondent’s intention to compulsorily acquire the suit property or any of the appellant’s properties, it was his evidence that the respondent compulsorily acquired the suit property. 30.Lastly, Charles Kibuthi Gathogo, PW4, a licensed land surveyor testified that he was involved in the excision of the land for the dam and that the suit property was part of the dam. He produced as exhibit a report dated 15th January 2014, but admitted that the report did not show the area that was to be covered by the dam and that, in fact, the dam had not yet been constructed. The witness was also not aware that the appellant had already entered into a sale agreement with the respondent. 31.For the respondent, Nicholas Muthui, its Chief Executive Officer, testified that the suit property was not among the property that the respondent purchased from the appellant, that it was not within the dam area; that the appellant was still in possession of the suit property and that the respondent had no interest or claim over it. The witness further testified that the respondent paid the appellant the agreed purchase price in full and that the dam was yet to be constructed. 32.As pleaded, the appellant’s case was for compensation for the suit property which the appellant alleged the respondent had acquired for construction of the dam. Compulsory acquisition is a term of art provided for by Article 40(3) (b) of the Constitution and Part VIII of the Land Act, 2012. The latter Act defines compulsory acquisition as follows:“Compulsory acquisition” means the power of the State to deprive or acquire any title or other interest in land for a public purpose subject to prompt payment of compensation.” 33.Section 21 of the repealed Water Act, 2002, which was the applicable legislation at the material time, provided for compulsory acquisition of land for public purpose as follows:“21(1)The Minister may, by notice published in the Gazette, designate the land required for the development of any state scheme(2)Land required for a state scheme may be acquired in any manner provided by law for the acquisition of land for public purposes.” 34.The Land Acquisition Act, cap 295 (repealed) which was in force at the material time, provided an elaborate procedure to be followed before acquisition of private property for public use. That procedure included, among others, prior notice in the Gazette and notification of every person interested in the land to be acquired; certification by the Minister to the Commissioner of Lands that the acquisition of the land was necessary and in public interest; Certification by the Commissioner to that effect; the holding of a public inquiry, within specified time, on claims by person interested in the land; and payment of full compensation. 35.From the evidence on record, that prescribed procedure was not followed in this case, leading to the inevitable conclusion that there was no compulsory acquisition of the suit property as understood in law. The appellant, therefore, did not prove the case it had pleaded. 36.Instead, the evidence on record shows that the appellant and the respondent entered into an agreement for sale of land on a willing-seller, willing-buyer basis. The land sold was 95 hectares to be excised from the property known as Gatuanyaga/Ngoliba/Block 2/209. The agreed purchase price was Kshs. 110,361,348.00, which the appellant does not dispute was paid by the respondent. It is common ground between the appellant and the respondent that the suit property was not part of the land sold under the agreement for sale. 37.Special Conditions numbers 12 and 14 constituted the agreement for sale the only valid and binding framework between the parties and provided as follows:“12.No amendment, change or addition to this Agreement shall be effectual or binding on the parties hereto unless it is in writing and duly executed by or on behalf of the parties hereto…14.Both parties agree that this Agreement constitutes the whole and only agreement between the parties hereto relating to the sale and purchase of the properties and supersedes and extinguishes any prior agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing relating to the sale and purchase of the properties.” 38.Under those special conditions, the parties could not add the suit property to the transaction without a written agreement duly executed by both parties. Secondly, the parties agreed that their relationship in the transaction was to be governed exclusively by the terms of the agreement for sale. 39.This then begs the question, on what basis does the appellant claim that the respondent acquired the suit property? The appellant’s argument, which is not consistent with its pleading on compulsory acquisition and the evidence on record, is that the suit property falls within the area of the dam and therefore the respondent is obliged to compensate the appellant for the suit property. 40.If it conceded, as the appellant must in the circumstances of this case, that there was no compulsory acquisition of the suit property as understood in law, and that the same was not sold under the agreement for sale, then the appellant’s case had no legs to stand on and the trial court had no choice but to dismiss it. 41.As has been stated time and again, parties are bound by their pleadings. In Gandy v. Caspar Air Charters Ltd [1956] 23 EACA, 139, the former Court of Appeal for Eastern Africa held that:“the object of pleadings is, of course, to secure that both parties shall know what are the points in issue between them; so that each may have full information of the case he has to meet and prepare his evidence to support his own case or to meet that of his opponent. As a rule relief not founded on the pleadings will not be given.” 42.And in Kenya Commercial Bank Ltd v. Sheikh Osman Mohammed, CA. No. 179 of 2010, this Court reiterated that:“It is not the function of a court in civil litigation to speculate or surmise as to the nature of the plaintiff’s claim. Pleadings must be deployed to serve their function, namely to inform the other party, and the court, with sufficient clarity what their case is so that the other party may have a fair opportunity to meet that case and more importantly, so that the issues for determination by the court are clear.” 43.Lastly, in David Sironga ole Tukai v. Francis arap Muge & 2 Others [2014] KECA 155 (KLR) this Court once more affirmed as follows:“It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other’s case is as pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense. The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice.” 44.If it was the appellant’s case that the respondent’s dam had unlawfully interfered with the suit property giving rise to a case for compensation, the appellant ought to have properly pleaded its case as such, or applied to amend the pleadings on record. Instead, the case before the court was a case for compensation following compulsory acquisition of the suit property by the respondent, which was not proved. We would add that even if the appellant had properly pleaded its case, in view of the respondent’s evidence and fervent denial that the suit property was in the dam area, the appellant did not prove on a balance of probabilities that the respondent had unlawfully interfered with the suit property to justify an order for compensation. 45.Taking all the above into account, we come to the conclusion that the High Court did not err by dismissing the appellant’s suit, and that this appeal has absolutely no merit. The same is dismissed with costs to the respondent. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.W. KARANJA……………………JUDGE OF APPEALK. M’INOTI…………………JUDGE OF APPEALF. TUIYOTT……………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.