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ELCDismissedNot stated in the judgment (Plaintiff's plaint dated 22nd June 2013)· [2018] KEELC 4162 (KLR)

Mary Atieno Onyango v Kenya Power & Lighting Company [2018] KEELC 4162 (KLR)

Environment and Land Court
7 March 2018
SKS. M. Kibunja
1,004 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Power could not kill a landowner's trespass suit early because disputed facts, like consent, must be decided at trial.

What this practically means

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Executive summary

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The Defendant, Kenya Power and Lighting Company Limited, raised a preliminary objection dated 24th October 2016 to Mary Atieno Onyango's suit, contending that the court lacked jurisdiction because the claim offended Sections 3, 6(1), 25, 26, 48, 49, 50 and 108 of the Energy Act (Cap 314), and sought striking out of the suit with costs. The Plaintiff, registered proprietor of Kisumu/Kogony/2868 since 10th November 2003, sued in trespass, alleging the Defendant unlawfully erected electricity power lines on her land without consent or consideration. The Defendant denied trespass and alternatively pleaded that the line was erected after due process with the Plaintiff's consent. The court framed three issues: whether the claim lay with the Energy Regulatory Commission or the court, whether the suit was an abuse of process, and costs. Applying Mukisa Biscuits v Westend Distributors, Kibunja J held the objection was incompetent because it turned on disputed facts - whether the line existed and whether consent was given - which must be ascertained at trial. The court distinguished Alice Mweru Ngai, where consent was undisputed and only compensation quantum was in issue, and followed Peter Mwangi Kabui v Rural Electrification Authority, where Olao J held that contested consent is a matter for trial. The preliminary objection was dismissed with costs to the Plaintiff; the suit proceeds to full trial.

Key legal issues

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01

Whether the court or the Energy Regulatory Commission has jurisdiction over a trespass claim concerning electricity power lines

Holding

The court retains jurisdiction because the claim is in trespass alleging no consent, raising facts for trial, unlike disputes over quantum of compensation under the Energy Act

Reasoning

The court distinguished Alice Mweru Ngai, where consent was undisputed and only compensation quantum was in issue (a matter for the Energy Regulatory Commission). Here the Plaintiff denies consent and compensation, and the Defendant's defence puts consent in issue. Following the reasoning of Olao J in Peter Mwangi Kabui, whether consent was given is a matter for trial, so the objection is not well founded.

p. 2
02

Whether the preliminary objection is competent given disputed facts

Holding

It is not competent; disputed issues of fact defeat a preliminary objection

Reasoning

Applying Mukisa Biscuits, the pleadings show disputes on whether a power line exists on the Plaintiff's land and whether it was erected with consent. Since those facts must be ascertained at trial, the objection is an inappropriate mechanism and must fail.

p. 1

Legal principles established

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  • A preliminary objection cannot succeed where ascertainment of facts is required

Court orders

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  1. 1.The Defendant's preliminary objection dated 24th October 2016 is dismissed
  2. 2.Costs of the preliminary objection to the Plaintiff

Authorities

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Legislation

  • Energy Act (Cap 314)Sections 3, 6(1), 25, 26, 48, 49, 50 and 108

Cases cited (3)

  • Mukisa Biscuits Company Versus Westend Distributors Limited
    [1969] E.A 698
  • Alice Mweru Ngai –v- Kenya Power & Lighting Co. Ltd
    [2015] eKLR
  • Peter Mwangi Kabui Versus Rural Electrification Authority
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; preliminary objection under Sections 3, 6(1), 25, 26, 48, 49, 50 and 108 of the Energy Act (Cap 314) contested

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Atieno Onyango v Kenya Power & Lighting Company [2018] KEELC 4162 (KLR)", Case Analysis (2018). Not stated in the judgment (Plaintiff's plaint dated 22nd June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4162/eng@2018-03-07

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