Embakasi East Court Company Limited & another v Kenya Power & Lighting Company (Environment & Land Case 593 of 2015) [2019] KEELC 5103 (KLR)

The court characterised the plaintiffs' grievance as relating to alleged illegal entry onto and use of land for power supply lines, rather than as a purely energy-sector dispute. On that characterisation, the dispute falls squarely within the broad jurisdiction over use and occupation of land donated by Article 162 of the Constitution and elaborated by Section 13 of the Environment and Land Court Act, and the objection on that ground failed.

The court noted first that the defendant, being in default of Sections 46 and 47 of the repealed Act, could not invoke the exhaustion objection. More significantly, the Energy Act No 1 of 2019, establishing the Energy and Petroleum Tribunal, came into force while the ruling was pending, repealing the 2006 Act. Justice required giving parties an opportunity to address the new framework or consensually refer the dispute to the new Tribunal.

The defendant's defence at paragraph 14 expressly admitted the court's jurisdiction. Raising jurisdiction in a preliminary objection years later, without first amending the pleadings to withdraw that admission, was procedurally improper. The court held it could not ignore the admission and deny the plaintiff a hearing without the defendant first amending paragraph 14 of the defence.

Although pleaded as the first ground of the preliminary objection, the limitation ground was absent from the defendant's written submissions. The court held it was the defendant's duty to identify the specific statute of limitation offended, and having failed to do so, the ground was dismissed without further consideration.