Nyabochwa Obiero v Kenya Power and Lighting Company Limited & another [2021] KEELC 950 (KLR)
The bottom line
#Kenya Power's attempt to force a trespass case to the Energy Tribunal failed, confirming land courts can hear trespass claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC lacks jurisdiction because the Plaintiff did not first resort to the Energy Regulatory Commission and the Energy Tribunal under the Energy Act, 2006
The Preliminary Objection fails; the court has jurisdiction because the cause of action is trespass to land, which the Energy Act does not cover
Sections 6, 61(3), 107, 108 and 110(1) of the Energy Act and Rules 2 and 4 of the 2012 Regulations cover disputes such as charges, deposits, illegal use of energy, defects in apparatus, billing, wayleaves and easements. The Plaintiff's claim is in trespass: the Defendant entered his land and installed power lines without notice or any wayleave agreement. The Energy Act does not deal with claims for trespass, so the statutory forum does not oust the ELC's jurisdiction. The Defendant also removed the cables in 2018, acknowledging the trespass, leaving nothing for the Commission to determine.
Legal principles established
#- A court cannot take any step without jurisdiction; once jurisdiction is successfully challenged, the court must stop
- Jurisdiction flows from the law and a court may not arrogate to itself jurisdiction through interpretation where legislation is clear
- Where a cause of action is in trespass to land, the ELC has jurisdiction notwithstanding statutory dispute-resolution mechanisms under the Energy Act
Court orders
#- 1.The Preliminary Obrection is dismissed
- 2.Costs of the Preliminary Objection awarded to the Plaintiff
- Jurisdiction invoked
- Article 162(2)(b) jurisdiction of the Environment and Land Court over claims of trespass to land (court's jurisdiction over disputes relating to land); objection grounded on sections 6(1), 61(3), 107, 108 and 110(1) of the Energy Act, 2006 and Rules 2 and 4 of the Energy (Complaints and Disputes Resolution) Regulations, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyabochwa Obiero v Kenya Power and Lighting Company Limited & another [2021] KEELC 950 (KLR)", Case Analysis (2021). (not stated in extract; ELC suit filed by Plaint dated 21st September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/950/eng@2021-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.