Thomas Schering v Nereah Micahel Said & 3 others [2019] KEELC 4851 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over the claim against the 4th defendant for reconnection of electricity
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.
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.
Jurisdiction over the claim against the 1st, 2nd and 3rd defendants concerning ownership and dealing with the suit plots
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.
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.
Legal principles established
#- 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
#- 1.The plaintiff's suit against the 4th defendant is struck out
- 2.The application against the 4th defendant is struck out
- 3.The plaintiff to pay the 4th defendant's costs of the suit and application
- 4.The preliminary objection as against the 1st, 2nd and 3rd defendants is dismissed
- 5.The plaintiff to pay the 1st, 2nd and 3rd defendants' costs of the preliminary objection
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.