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ELCStruck OutNot stated in the judgment (Busia Environment and Land Court suit)· [2019] KEELC 1127 (KLR)

Richard Etyanga v Kenya Power and Lighting Company; Rural Electrification Authority (Third Party) [2019] KEELC 1127 (KLR)

Environment and Land Court
12 September 2019
AKA. K. KaniaruAOA. Omollo
815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner suing Kenya Power lost his entire case because he never first complained to the Energy Regulation Commission as required by the Energy Act.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Busia determined a preliminary objection raised by the defendant, Kenya Power and Lighting Company Limited, against a suit filed on 19/12/2013 by the plaintiff, Richard Etyanga. The plaintiff alleged that the defendant had trespassed onto his land parcel NORTHTESO/ANGURAI/748 through agents preparing to install a power transmission line, and that trees were cut down without permission; he sought damages and other reliefs. The objection, supported by written submissions of the defendant and the Third Party, Rural Electrification Authority (the plaintiff filed none), contended that the suit was misconceived because the plaintiff bypassed the statutory dispute resolution machinery in Sections 6(1), 61(3), 107, 108 and 110(1) of the Energy Act, 2006 and Rule 2 and 4 of the Energy (Complaints Disputes Resolution) Regulations, 2012. The court agreed that the plaintiff's first port of call should have been the Energy Regulation Commission, with an appeal thereafter to a tribunal under the Act. Relying on authorities including Anisminic Ltd v Foreign Compensation Commission and decisions cited by the parties, the court held that where statute establishes a dispute resolution forum, a litigant may not come directly to court, and that the court lacked mandate to hear the matter as a forum of first instance. The preliminary objection was upheld and the plaintiff's case struck out with costs to both the defendant and the third party.

Key legal issues

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01

Exhaustion of statutory dispute resolution mechanisms under the Energy Act, 2006

Holding

The preliminary objection succeeds; the suit is struck out because the plaintiff failed to first take his complaint to the Energy Regulation Commission and, if dissatisfied, to the tribunal established under the Energy Act.

Reasoning

The Energy Act establishes the Energy Regulation Commission (Sections 4 and 6) as the first port of call for complaints of this nature, with an appeal lying to a tribunal under the same Act. The court, citing Supreme Court, Court of Appeal and English authorities, held that where a specialised forum is created by statute, a litigant cannot bypass it and file suit directly in court. The plaintiff filed no submissions to counter this position.

p. 2

Legal principles established

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  • Where the law establishes a dispute resolution forum, a party must ventilate the claim there before resorting to the courts

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The Plaintiff's case is struck out with costs to both the Defendant and the Third Party

Authorities

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Legislation

  • Energy ActSections 4, 6(1), 61(3), 107, 108, 110(1)
  • Energy (Complaints Disputes Resolution) RegulationsRules 2 and 4

Cases cited (7)

  • Alice Mweru Ngai v Kenya Power and Lighting Co. Ltd
    [2015] eKLR
  • Constitution application No. 2 of 2011
  • Peter Njuguna Muturi v Kenya Wildlife Service
    CA No. 260/2013
  • Diana Keith Kilonzo v IEBC & 2 others
  • National Assembly v Karume
    [2008] IKlr 426 (ep)
  • Kimani Wanyoike v Electoral Commission
    CA No. 213 of 1993 (UR)
  • Anisminic Ltd v Foreign Compensation Commission & Another
    [1969] I ALL ER 208
Jurisdiction invoked
Sections 6(1), 61(3), 107, 108 and 110(1) of the Energy Act, 2006 and Rule 2 and 4 of the Energy (Complaints Disputes Resolution) Regulations, 2012 (exhaustion of statutory dispute resolution mechanisms)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Richard Etyanga v Kenya Power and Lighting Company; Rural Electrification Authority (Third Party) [2019] KEELC 1127 (KLR)", Case Analysis (2019). Not stated in the judgment (Busia Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1127/eng@2019-09-24

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