Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELCA Case No. 16 of 2019· [2020] KEELC 1905 (KLR)

Livingstone Maina Ombete v Kenya Power & Lighting Company Ltd [2020] KEELC 1905 (KLR)

Environment and Land Court
24 June 2020
NMN. A. Matheka
1,961 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that landowners can sue Kenya Power for trespass in ordinary courts, even where the Energy Act applies.

What this practically means

#

Executive summary

#
This was an appeal to the Environment and Land Court at Kakamega against a ruling of the Chief Magistrate delivered on 9th May 2019, in which the trial court upheld a preliminary objection that it lacked jurisdiction by reason of sections 6, 48 and 55 of the Energy Act, 2006, and dismissed the appellant's suit against Kenya Power & Lighting Company Ltd. The appellant contended that the Energy Act provisions applied only to disputes between energy sector players and, in any event, only where the respondent complied with section 46 by giving the requisite notice; his claim was one of simple trespass on his land, over which the magistrate's court had jurisdiction. The court restated the settled jurisprudence on jurisdiction from the Lillian S case, the Supreme Court in Samuel Kamau Macharia and Equity Bank v Mutie, before distinguishing Peter Mwangi Kabui v Rural Electrification Authority and the Alice Mweru Ngai decision, where the landowner had consented to the electric line and the dispute concerned compensation. Here, whether the respondent trespassed without the landowner's consent was a matter for trial. Holding that the trial magistrate's decision was not judiciously arrived at, the court allowed the appeal, set aside the ruling of 9th May 2019, and substituted an order that the trial court has jurisdiction to hear and determine the suit, with costs to the appellant.

Key legal issues

#
01

Whether the Energy Act, 2006 ousts the court's jurisdiction over a dispute framed as trespass

Holding

The jurisdictional bar under the Energy Act applies to disputes between energy sector players over matters regulated under the Act; a claim of trespass without consent or a contractual relationship is justiciable before the court

Reasoning

The court distinguished Alice Mweru Ngai as applied in Peter Mwangi Kabui v Rural Electrification Authority, where the plaintiff had consented and been compensated, confining the dispute to compensation under the Energy Act. Here, whether the respondent trespassed without the landowner's consent is a factual matter for trial, so the preliminary objection on jurisdiction was wrongly upheld.

p. 3
02

The fundamental nature of jurisdiction

Holding

Jurisdiction flows from the Constitution or legislation; a court without jurisdiction must down its tools and cannot be cured by consent, the overriding objective or Article 159

Reasoning

Relying on Owners of the Motor Vessel 'Lillian S' v Caltex Oil, the Supreme Court in Samuel Kamau Macharia, and Equity Bank v Mutie, the court restated that jurisdiction must be acquired before judgment is given and cannot be conferred by consent or craft of interpretation. This principle frames, but does not decide, the appeal.

p. 1

Legal principles established

#
  • Where the dispute is whether a party trespassed on land without consent, that question is to be determined at trial and the court seized of it has jurisdiction

Court orders

#
  1. 1.The ruling and order of the trial court dated 9th May 2019 is set aside with a substitution that the trial court has jurisdiction to hear and determine the suit and should do so
  2. 2.The appeal is allowed with costs

Authorities

#

Legislation

  • Energy Actsections 4, 6(1), 46, 48, 55
  • Civil Procedure Actsections 1A, 1B, 18
  • Constitution of KenyaArticle 159(2)(d), Article 163(3)

Cases cited (12)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd.
    (1989) KLR
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution
    Constitutional Application No. 2 of 2011
  • Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 Others
    Supreme Court Civil Appeal (Application) No. 2 of 2011
  • Boniface Waweru Mbiyu vs. Mary Njeri & Another
    null
  • Abraham Mwangi Wamigwi vs. Simon Mbiriri Wanjiku & Another
    (2012) eKLR
  • Ali Abdi Sheikh vs. Edward Nderitu Wainaina & Others
    null
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    (2019) eKLR
  • Joseph Njuguna Mwaura & others Vs. Republic
    C.A Criminal Appeal No. 5 of 2008
  • Peter Mwangi Kabui Versus Rural Electrification Authority
    [2016] eKLR
  • Alice Mweru Ngai case
    null
  • Mwanasokoni v Kenya Bus Service
    (1982 - 88) 1 KAR 870
On appeal from
Chief Magistrate's Court at Kakamega
null
Jurisdiction invoked
Environment and Land Court Act (appeal from subordinate court to the Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Livingstone Maina Ombete v Kenya Power & Lighting Company Ltd [2020] KEELC 1905 (KLR)", Case Analysis (2020). ELCA Case No. 16 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1905/eng@2020-06-24

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