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ELCPartially Allowed· [2019] KEELC 4851 (KLR)

Thomas Schering v Nereah Micahel Said & 3 others [2019] KEELC 4851 (KLR)

Environment and Land Court
23 January 2019
1,627 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court can hear land ownership disputes, but electricity reconnection claims must first go to the Energy Regulatory Commission.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C. Yano, J) determined a preliminary objection dated 30th April 2018 by the 2nd and 3rd defendants, supported by the 1st and 4th defendants, on the ground that the court lacked jurisdiction because the disputes concerned electricity, a matter the defendants said was reserved for the Energy Regulatory Commission under the Energy Act. Counsel for the defendants relied on the Energy Act (Sections 3, 4, 5, 6 and 61(3)), Section 9 of the Fair Administrative Actions Act 2015 on exhaustion, and several eKLR decisions involving Kenya Power, including the jurisdictional classicus Owners of Motor Vessel 'Lillian S'. The plaintiff opposed, citing Mukisa Biscuit on the threshold for preliminary objections and Emily N. Mulanya, contending that the claim concerned ownership, use and sale of land intertwined with electricity connection, and that the ELC was the proper forum to avoid multiplicity of suits. The court applied Lillian S and held that the claim against the 4th defendant, which sought restoration or reconnection of electricity supply, fell within the exclusive preserve of the Energy Regulatory Commission and not within Article 162(2)(b) of the Constitution or Section 13 of the Environment and Land Court Act. The suit and application against the 4th defendant were therefore struck out with costs. However, the dispute against the 1st, 2nd and 3rd defendants over ownership of the suit plots fell squarely within the ELC's jurisdiction; the objection was dismissed against them with costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over the claim against the 4th defendant for reconnection of electricity

Holding

The claim for restoration or reconnection of electricity supply is a preserve of the Energy Regulatory Commission under Sections 3, 6 and 61(3) of the Energy Act; the suit against the 4th defendant is improperly before the ELC and is struck out.

Reasoning

The court examined the plaint, noting that the claim against the 4th defendant revolved solely around reconnection of electricity. Parliament, by the Energy Act, intended such disputes to be handled by a specialised body, the Energy Regulatory Commission, at first instance. Such a dispute does not fall within Article 162(2)(b) of the Constitution or Section 13 of the Environment and Land Court Act, so the court lacks jurisdiction over that limb of the claim.

p. 2
02

Jurisdiction over the claim against the 1st, 2nd and 3rd defendants concerning ownership and dealing with the suit plots

Holding

The dispute over ownership of KWALE/GALU KINONDO/2458, 2459 and 2460 falls within Article 162(2)(b) of the Constitution and the Environment and Land Court Act; the preliminary objection against the 1st, 2nd and 3rd defendants fails and is dismissed with costs.

Reasoning

The court distinguished the claim against the first three defendants, which concerned ownership and dealings in the suit parcels, from the electricity claim against the 4th defendant. Land ownership disputes are core ELC business under the Constitution and the Environment and Land Court Act, so the court retains jurisdiction to determine that part of the suit notwithstanding the struck-out electricity claim.

p. 2

Legal principles established

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  • A court of law downs its tools the moment it holds that it is without jurisdiction
  • Disputes concerning electricity connection and supply are at first instance a preserve of the Energy Regulatory Commission under the Energy Act and do not fall within Article 162(2)(b) of the Constitution
  • Disputes over ownership, use and occupation of land fall squarely within the jurisdiction of the Environment and Land Court under Article 162(2)(b) and the Environment and Land Court Act

Court orders

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  1. 1.The plaintiff's suit against the 4th defendant is struck out
  2. 2.The application against the 4th defendant is struck out
  3. 3.The plaintiff to pay the 4th defendant's costs of the suit and application
  4. 4.The preliminary objection as against the 1st, 2nd and 3rd defendants is dismissed
  5. 5.The plaintiff to pay the 1st, 2nd and 3rd defendants' costs of the preliminary objection

Authorities

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Legislation

  • Energy ActSections 3, 4, 5, 6 and 61(3)
  • Fair Administrative Actions ActSection 9
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSections 13(1) and 13(2)

Cases cited (10)

  • Alice Mweru Ngai –v- Kenya Power & Lighting Co. Ltd
    (2015)eKLR
  • Michael Kamau Kinga –v- Kenya Power
    (2018)eKLR
  • Kenya Power & Lighting Company Limited –v- James Njue Njiru
    (2018)eKLR
  • Owners of Motor Vessel "Lillian S" –v- Caltex Oil (Kenya) Ltd
    (1989) 1 KLR 1
  • Dorcas Mbathi –v- Kenya Power & Lighting Co. Ltd
    (2017)eKLR
  • Royal Reserve Management Company Ltd –v- Kenya Power & Lighting Company Ltd
    (2017)eKLR
  • Joseph Nzyoki Mwanthi –v- Kenya Power & Lighting Company Ltd
    (2017) eKLR
  • James Mwaura Ndung'u –v- Kenya Power & Lighting Company Ltd
    (2017)eKLR
  • Mukisa Biscuit Manufactuing Co. Ltd –v- West End Distributors Ltd
    (1969)EA 696
  • Emily N. Mulanya –v- Kenya Power & Lighting Company
    (2018)eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act

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, "Thomas Schering v Nereah Micahel Said & 3 others [2019] KEELC 4851 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4851/eng@2019-01-23

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