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ELCDismissedELC Case of 2016 (Busia) – suit filed 2/8/2016· [2018] KEELC 2326 (KLR)

Emily N. Mulanya v Kenya Power and Lighting Company [2018] KEELC 2326 (KLR)

Environment and Land Court
18 July 2018
AKA. K. Kaniaru
1,512 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Power failed to stop a landowner's damages suit in court, because a preliminary objection must rest on admitted facts already pleaded in the defence.

What this practically means

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Executive summary

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The Plaintiff, Emily N. Mulanya, sued Kenya Power and Lighting Co. Ltd for unlawfully erecting an electric power supply line through her land, South Teso/Angoromo/3763, rendering it unfit for commercial activity. She sought removal or re-routing of the power line plus general and aggravated damages. The Defendant denied the claim and later raised a preliminary objection contending that the court lacked jurisdiction, the dispute belonging to the Energy Regulatory Commission under Sections 6(1) and 63(1) of the Energy Act and the Energy (Complaints and Dispute Resolution) Regulations, 2012, relying on the Lilians v Caltex line of authority. The Plaintiff countered that the objection was not a proper preliminary objection since it was not founded on admitted facts and was not raised in the defence, citing Mukisa Biscuit; and that where remedies such as general and aggravated damages are sought, which the Commission may not be competent to award, a litigant may resort to court. The court agreed. Applying Muiruri v Kimemia, Sirma v Kiprono and Achola v Hongo, it held that an objection cannot rest on contested facts nor be raised on an unpleaded issue; the Defendant had denied the entire claim and had intimated a different objection in its defence. The court also endorsed the principle that a litigant may go to the forum that can competently grant all remedies sought. The preliminary objection was dismissed with costs on 18 July 2018, leaving the suit to proceed to full trial.

Key legal issues

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01

Whether the objection was a proper preliminary objection

Holding

It was not; it was raised against contested facts since the Defendant had denied the Plaintiff's entire claim in its defence

Reasoning

A preliminary objection assumes all facts pleaded by the opposite party are correct. The Defendant filed a defence denying the entire claim, so there were no admitted facts on which to base a pure point of law. The court relied on Mukisa Biscuit, Muiruri v Kimemia and Sirma v Kiprono, holding that an objection cannot be raised if any fact has to be ascertained or where judicial discretion is sought. On this score the Defendant was plainly wrong.

p. 2
02

Whether the objection was properly raised procedurally

Holding

No; it was not pleaded or intimated in the defence, which instead intimated a different objection

Reasoning

Following Achola v Hongo, where the Court of Appeal faulted a party for raising limitation as a preliminary objection when it had not been pleaded in the defence, the court held that the defence must first raise the issue and intimate an intention to object. The objection raised here was not foreshadowed and came unheralded, leaving the Plaintiff unprepared to meet it.

p. 2
03

Whether the Energy Regulatory Commission has exclusive jurisdiction over the dispute

Holding

The objection failed because remedies such as general and aggravated damages are sought which the Commission may not be competent to award; a litigant may go to the forum that can handle the whole dispute

Reasoning

While accepting the Defendant's exposition of the law as generally sound, the court noted the Defendant did not respond to the Plaintiff's argument that damages are the exclusive preserve of courts. Upholding the objection would force multiplicity of suits in different fora. The logical course is to allow a litigant to resort to the one forum competent to grant all remedies claimed.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or where contested or disputed facts exist
  • A party who has filed a defence denying the entire claim cannot found a preliminary objection on admitted facts
  • The issue upon which a preliminary objection is based must first be raised or intimated in the defence
  • Where a statutory forum cannot grant all remedies sought, a litigant is entitled to go to the forum that can competently handle the entire dispute

Court orders

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  1. 1.The preliminary objection dated 18/5/2018 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Plaintiff

Authorities

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Legislation

  • Energy ActSection 6(1) and 63(1)
  • Energy (Complaints and Dispute Resolution) Regulations, 2012Rule 2 and Rule 4(a)
  • Energy Regulations, 2012relevant rules
  • Public Authorities Limitation Act

Cases cited (13)

  • The Owners of the Motor Vessel “Lilians” v Caltex Oil (Kenya) Ltd
    [1989] 1 (Civil Appeal No. 50 of 1989)
  • Joseph Njuguna Mwaura & others v Republic
    CA Cr. Appeal No. 5 of 2008, Nairobi
  • Animistic Ltd v Foreign Compensation Commission & Another
    [1969] 1 All ER
  • Alice Mweru Ngai v Kenya Power & Lighting Co. Ltd
    [2015] eKLR
  • James Mwaura Ndungu v Kenya Power & Lighting Company
    Civil Appeal No. 228 of 2011
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • George Oraro v Barak Eston Mbaja
    HCC No. 85 of 1992, Nairobi
  • Joseph Abraham Kafwa v Kenya Power & Lighting Co. Ltd
    ELC No. 1005 of 2012, Eldoret
  • Justus Mutiga & Others v The Law Society of Kenya & Another
    Civil Appeal No. 141/2016, Nairobi
  • Gladys Mwaniki & Others v Gordon Oluoch & Others
    HCC Petition No. 334/2015, Nairobi
  • Muiruri v Kimemia
    [2002] 2 KLR 677
  • Sirma v Kiprono
    [2005] 1 KLR 197
  • Achola & Another v Hongo & Another
    [2004] 1 KLR 462
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (suit property South Teso/Angoromo/3763); objection founded on Section 6(1) and 63(1) of the Energy Act and Energy (Complaints and Dispute Resolution) Regulations, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Emily N. Mulanya v Kenya Power and Lighting Company [2018] KEELC 2326 (KLR)", Case Analysis (2018). ELC Case of 2016 (Busia) – suit filed 2/8/2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2326/eng@2018-07-18

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