https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4583

Mbubi & 12 others v Kenya Electricity Transmission Company Limited & another (Environment and Land Petition 5B of 2020) [2026] KEELC 4583 (KLR) (20 July 2026) (Ruling) Neutral citation: [2026] KEELC 4583 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Petition 5B of 2020 EO Obaga, J July 20, 2026 Between King’oo Mbubi 1st Petitioner Jones Ndemang Kimeu 2nd Petitioner Rael Nzilani Ndimu 3rd Petitioner Masila Nzyoki 4th Petitioner Tabitha Mwikali Kavila 5th Petitioner Kimolo Boniface Mutuku 6th Petitioner Dominic Mausa Mulandi 7th Petitioner Samuel Makisa Mulinge 8th Petitioner Kiilu Mayoli 9th Petitioner Kilatya Mulinda Mutweseu 10th Petitioner Grace Kilai Mwove 11th Petitioner Joyce Wayua Kinyili 12th Petitioner Margaret Mumbua Kisaulu, Patrick Nzuma Kisaulu (Suing In Their Capacity As Administrators Of The Estate Of The Late Joseph Kisaulu Mwongela) 13th Petitioner and Kenya Electricity Transmission Company Limited 1st Respondent Attorney General 2nd Respondent Ruling 1.The Petitioners filed a further amended petition dated 4th May, 2018 in which they sought the following reliefs:a.A declaration that the 1st Respondent has violated the Petitioners’ right to property under Article 40 of the Constitution.b.A declaration that the Petitioners are entitled to compensation and have been denied such compensation as follows:i.1st Petitioner Kshs.2,670,720ii.2nd Petitioner Kshs.1,131,750iii.3rd Petitioner Kshs.168,270iv.4th Petitioner Kshs.99,178v.5th Petitioner Kshs.123,370vi.6th Petitioner Kshs.468,800vii.7th Petitioner Kshs.268,150viii.8th Petitioner Kshs.721,730ix.9th Petitioner Kshs.2,672,953x.10th Petitioner Kshs.132,880xi.11th Petitioner Kshs.40,050xii.12th Petitioner Kshs.4,677,770xiii.13th Petitioner Kshs.344,320c.Costsd.An inquiry into the just compensation due to the Petitioners and an order for payment together with interests; ande.Any other relief that this honourable court may deem fit in the circumstances. 2.The Petitioners are land owners at Utithi area of Kibwezi in Makueni County. The 1st Respondent is a state corporation whose mandate is to plan, design, develop, maintain and operate Kenya’s high voltage electricity transmission. Network. 3.In the year 2010, the 1st Respondent was charged with the responsibility of constructing an electricity transmission line from Mombasa to Nairobi to improve electricity transportation between the two biggest cities of Kenya. 4.The 1st Respondent was required to obtain access permission from the land owners over a corridor of sixty (60) meters wide for the entire length of 474 kilometers that the line would traverse. 5.The land owners were eligible to receive three separate payments namely:i.Payment to the structure owner, in compensation for any structure that needed to be pulled down from the corridor.ii.Payment to the owner of crops, in compensation for any vegetation that needed to be cleared from the corridor, andiii.Payment to the owner of the land, as consideration for agreeing to grant the 1st Respondent permission to construct the line. 6.In the year 2011, the 1st Respondent carried out an assessment of the crops affected within the corridor at Utithi, Kibwezi area of Makueni County and prepared crop damage report (CDR). It was later realized that the CDRs which had been prepared were exaggerated and contained errors. The affected landowners were called to a meeting where it was agreed that there was need to re-assess the damage to crops of the affected persons. Consequently, there were re-assessment reports which were prepared and signed by the affected land owners at Utithi, Kibwezi area of Makueni County. 7.Some payments had been made based on the erroneous and exaggerated assessment reports. Some other payments were made based on the re-assessment reports. 8.It is after the re-assessment that the petitioners started disputing the re-assessed damages leading to the filing of this petition. The Petitioners contend that the 1st Respondent has not paid full compensation as per the assessments which were occasioned by the 1st Respondent. The Petitioners state that their constitutional rights under Article 40 of the Constitution have been violated. 9.The 1st Respondent opposed the petitioners’ petition based on a replying affidavit sworn on 7th August, 2015. The 1st Respondent contends that the only dispute which has been brought before the court is in respect compensation for crops of the petitioners. 10.The 1st Respondent states that in determining the compensation due to a land owner’s crops, it is guided by the applicable laws as well as its Resettlement Action Policy which requires that vegetation with a height exceeding twelve feet has to be removed from the corridor before the construction of the line commences. The owner of the crops is compensated at market value for the crops that they cannot harvest as well as trees and payment is also made for bush and other vegetation that is cleared to allow construction of the line in the corridor. 11.To arrive at the compensation amount, the 1st Respondent’s officers are sent to the ground to enumerate the crops that have been cleared from the corridor. Enumeration of the destroyed vegetation is then captured in Crop Damage Report (CDR). It was later found that the CDRs which were prepared in the year 2011 were grossly exaggerated and contained errors. 12.In the year 2014 there were meetings held whereby the Petitioners were informed of the need for reassessment. The Petitioners accepted the need for reassessment. Reassessments were carried out in 2014 and fresh CDRs were issued which were accepted by the petitioners. 13.The 1st Respondent contends that this petition was filed and is questioning the reassessment. The 1st Respondent states that the reassessment was done to ensure that payment was made for the actual loss incurred and if the Petitioners’ petition was to be allowed, it will result in the payment of amounts for crop loss which was not incurred. The 1st Respondent states that this will result in loss of tax payers money. 14.The 1st Respondent states that it is willing to compensate the Petitioners in accordance with the reassessed loss which reflects the true picture of the loss they incurred. 15.The 2nd Respondent opposed the Petitioners’ petition based on grounds of opposition dated 1st February, 2018 and filed in court on 2nd February, 2018. The 2nd Respondent contends that the Petitioners should have filed an ordinary civil suit as their claim is based on damage to property. The 2nd Respondent further contends that the Petitioners’ petition does not meet the threshold set out in the case of Amatrita Karimi Njeru case and the Trusted Society Case. 16.The 2nd Respondent contends that the petition does not disclose any cause of action against him and prays that the petition be dismissed with costs as it is frivolous and an abuse of the process of the court. 17.The parties were directed to dispose of the petition by way of written submissions. The Petitioners filed their submissions dated 16th July, 2025. The 1st Respondent filed submissions dated 1st September, 2025. The 2nd Respondent did not file any submissions. 18.The Petitioners submitted that in the months of September, October and November, 2011 the 1st Respondent gave the Petitioners property damage reports in respect of damage done to their crops when the 1st Respondent started construction of the power line. In 2012, the 1st Respondent reentered the petitioners’ land and destroyed more crops. It was agreed that the damage of 2012 was to be paid independently from the damage of 2011. 19.The 1st Respondent partly paid the damages before later coming in 2014 in the presence of area chief and police officers who forced the Petitioners to sign new property damage reports. They submitted that as most petitioners were illiterate, they signed the new reports as they were told that failure to do so would attract criminal sanctions. 20.The Petitioners submitted that the new assessment reports did not follow due procedure. They submitted that their property rights under Article 40 of the Constitution were violated. The Petitioners submitted that the 1st Respondent moved into their properties and started erecting high voltage electricity lines without compensating them. 21.The Petitioners submit that no formal process of acquisition was followed and that they have been prevented from use of the portions taken from them. The petitioners relied on the case of Thuo &151 Others –vs- National Land Commission & 5 Others (2024) eKLR. 22.The Petitioners submitted that the 1st Respondent was obliged to compensate the Petitioners based on the assessment of 2011. Further reliance was placed on the case of Patrick Musima –vs- National Land Commission and Others (2016) eKLR. 23.The Petitioners further submitted that the 1st Respondent had raised their expectations that they were to be compensated based on the reports of 2011. They relied on the case of R –vs- Kenya Revenue Authority exparte Shake Distributors Ltd (2012) eKLR. 24.The Petitioners faulted the 1st Respondent for failure to produce the alleged audit reports to show that there were errors in the assessment of 2011. The reduced figures in the assessment of 2014 was done without involvement of the Petitioners. They relied on the case of R-vs- Kenya Pipeline Company & Another Exparte Stanley Muthama (2018) eKLR. 25.The Petitioners also submitted that they were coerced into signing the fresh assessments of 2014. They submit that the 1st Respondent’s actions of revising the assessment was not procedurally fair and was contrary to Article 47 of the Constitution. They relied on the case of Kenya Human Rights Commission –vs- Non Governmental Organizations Co-ordination Board (2016) eKLR. Further reliance was placed on the case of R-v- Director of Public Prosecutions & Another Exparte Justuce Syahuka (2018) eKLR. 26.The 1st Respondent submitted that the Petitioners’ contention is that they should be paid based on the assessment of 2011. On the other hand, the 1st Respondent states that the amount it was paying the Petitioners before this suit was filed was based on the reassessment of 2014. 27.The 1st Respondent submits that there were no particulars of any coercion pleaded in the petition but the allegation of coercion has been raised in the submissions of the Petitioners. The 1st Respondent submitted that the Petitioners had failed to discharge the burden bestowed upon them by Section 107 and 108 of the Evidence Act. The 1st Respondent relied on the case of Ignatius Makau Mutisya –vs- Reuben Musyoki Muli (2015) KECA B12 (KLR) where it was held as follows:“Of relevance also are Section 107 and 108 of Evidence Act (Cap 80 Laws of Kenya) which assign burden of proof in a case. Those two sections provides:107.(1)Whoever desires any court to give judgment as to any legal right or liability depend on the existence of facts which he asserts must prove that those facts exists.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.The burden of proof is a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”. 28.The 1st Respondent also submitted that parties are bound by their contracts and a court cannot rewrite a contracts for them. Reliance was placed on the case of Pius Kimaiyo Langat –vs- Co-operative Bank of Kenya Limited (2017) KECA 152 (KLR) where it was held as follows:“We are alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved. See National Bank of Kenya Ltd –vs- Pipelastic Samkolit (K) Ltd (2002) 2 EA 503. The primary task of the court is to construe the contract and any terms implied in it. See Meggary, J. in the case of Coco –vs- A. N. Clark (Engineers) Ltd. – (1969) RPC 4”. 29.I have carefully considered the Petitioners petition, the opposition thereof by the Respondents as well as the submissions by the Petitioners and the 1st Respondent. There is no contention that there were three components of compensation. The first component was for compensation of structures which had to be removed from where the construction of the line was to be carried out. The second component was for compensation for the owner of the land for agreement to the passage of the high voltage line on his land. The third component was for damage to crops which had to be removed where the construction was being undertaken. 30.There is no Petitioner who is alleging that his house or any other structure was removed and was not compensated. PW1 Samuel Makisa Mulinge confirmed in reexamination that he was paid Kshs.1,000,000/= for his house which was demolished to pave way for construction of the high voltage line. 31.The 11th Petitioner’s land measuring 2.79 acres was affected. She was compensated Kshs.70,000/= per acre which translated to Kshs.156,364.88 as per the offer which she was given on 2nd October, 2012. She was fully paid for the land on 1st July, 2013 as per her own bank statement which was produced in evidence. 32.The Petitioners’ petition clearly shows that what they are only seeking is compensation for crops damaged or removed. The issues which then arise for determination are firstly whether the Petitioners should have filed a constitutional petition when what they were claiming arose from a simple contract for damages to crops. Secondly, whether the constitutional rights of the Petitioners were violated. Thirdly, are the Petitioners entitled to the reliefs sought in the petition. 33.On the first issue, a look at the petition shows that the bone of contention is that the 1st Respondent had changed the assessment from that done in 2011 to the one done in 2014. The Petitioner’s contention is that the variation was done without following the procedure. If this is the petitioners’ contention, this is a matter which should have been brought as an ordinary civil suit for breach of contract and not as a constitutional petition. Before the petitioners further amended their petition, the court had observed that this is a mater which ought to have been brought as an ordinary civil suit. This observation was made on 5th February, 2018 by Justice Eboso who observed that the petition did not contain any amounts sought for compensation. The Petitioners’ advocate was given 30 days to reflect on the possibility of further amending the petition. This is when a further amended petition was filed on 4th May, 2018 introducing the sums claimed. 34.It is therefore clear that this constitutional petition should have better been brought by way of an ordinary suit. 35.On the second issue, the Petitioners are alleging that their constitutional rights under Article 40 (3) of the Constitution have been violate. Article 40 (3) states as follows:The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—a.results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; orb.is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—i.Requires prompt payment in full, of just compensation to the person; andii.Allows any person who has an interest in, or right over, that property a right of access to a court of law. 36.As I have said hereinabove, the Petitioners are not contending that their property was taken without compensation. I have demonstrated that one of the petitioners was paid for land taken from her. There are documents by the other Petitioners filed by them which show that each Petitioner was offered compensation for the land taken. No Petitioner is alleging in the petition that he/she was not paid for the land taken. There is therefore no basis upon which the Petitioners can allege that their constitutional rights under Article 40 (3) were violated. 37.The compensation they are claiming are for seasonal crops which were growing on the land which are personal properties capable of being harvested and therefore do not constitute permanent fixures as to from part of the land. I therefore find that the constitutional rights of the Petitioners under Article 40 (3) were not violated. 38.On the third issue, the court has already found that this constitutional petition should not have been filed. An ordinary suit by way of a plaint should have sufficed. I have also found that no constitutional right of the petitioners were violated under Article 40 (3) of the Constitution. 39.Even if I were to consider the Petitioners’ claims under this petition, the Petitioners’ claim would not have succeeded. Initially the Petitioners had given authority to the 2nd Petitioner to plead on their behalf. When the 2nd Petitioner died and was never substituted, the Petitioners attempted to present the 8th Petitioner to testify on behalf of the other Petitioners. When it emerged that the 8th Petitioner could not testify on behalf of the other Petitioners, the Petitioners’ counsel sought to call more Petitioners. 40.The 2nd, 7th and 12th Petitioners were called and they testified. The rest of the Petitioners were not called to testify. The evidence which was adduced is that the assessments of 2011 were found to be containing errors and were grossly exaggerated. The 1st Respondent called the affected Petitioners to a meeting whereby it was agreed that there was need for reassessment. All the Petitioners herein were in that meeting. Pursuant to the meeting, fresh assessments were done and each of the Petitioners signed and payment resumed on the basis of the fresh assessments. 41.The Petitioners argue in their submissions that there was coercion which resulted into the signing of fresh assessments of crop damages. The allegations of fraud were never pleaded in the petition. Submissions cannot be a substitute for evidence. 42.The moment the Petitioners agreed to the reassessment and new reassessments were done which were signed by the Petitioners, the Petitioners cannot run away from that binding contract. As was stated in the Pius Kimaiyo Langat case (Supra), a court cannot rewrite a contract for the parties. There were no particulars of coercion which were pleaded and none were proved. 43.The Petitioners’ petition was based on the assessments of 2011 which were revised in 2014. As there was no coercion proved on the part of the 1st Respondent, the only basis of the claim by the Petitioners should have been on revised assessment of 2014. 44.There is evidence including admission from some Petitioners that they were paid some amounts. There is single no Petitioner who came up to prove the amount pleaded in the Petition. Majority of the Petitioners never testified. Their claims were never proved. There is therefore no basis upon which this court would have made a declaration that the Petitioners are entitled to compensation as per prayer (b) in the further amended petition. 45.The Petitioners are also asking for an order or conduct of inquiry into the just compensation due to the Petitioners and an order for payment together with interest. The Petitioners came to this court with specific amounts they sought for their crops. They have failed to prove this. The court cannot carry out any other inquiry without a basis. I find that the Petitioners’ petition is devoid of merit. The same is dismissed with costs to the Respondents. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF JULY, 2026.................................................HON. E. O. OBAGA, FCIArbJUDGEIn the presence of:Mr. Ndolo for Ms. Kilonzo for PetitionersMr. Manyara for 1st RespondentCourt assistants – Kilonzo & Musyoki