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ELCStruck OutPetition dated 9th May 2019 (filed 3/7/2019)· [2021] KEELC 1575 (KLR)

Nyaga v Attorney General & 2 others (Environment and Land Petition 31 of 2019) [2021] KEELC 1575 (KLR)

Environment and Land Court
13 October 2021
BEB M Eboso
1,491 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner's constitutional petition over an electricity pole was struck out because Kenya's Energy Act requires such disputes to go first to the Energy and Petroleum Tribunal.

What this practically means

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Executive summary

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The petitioner, Justin Karionji Nyaga, filed a petition alleging that the 3rd respondent, a power licensee, had trespassed on his land, Parcel LR No 5982/2 Ngumba Estate, Nairobi, by erecting an electricity pole, and that the 2nd and 3rd respondents had refused to mediate the dispute since 2015 as allegedly required by law. He sought declarations of breach of various Bill of Rights articles, orders compelling mediation or removal of the pole, damages, and costs. The 2nd respondent raised a preliminary objection contending that the court lacked jurisdiction because the Energy Act establishes a specialist dispute resolution mechanism and the Energy and Petroleum Tribunal has original civil jurisdiction over disputes between licensees and third parties. The court, in a ruling by B M Eboso J, framed a single question: whether the petition offended the doctrine of exhaustion of remedies. Relying on Benard Murage v Fine Serve Africa Limited and Speaker of the National Assembly v James Njenga Karume, the court held that where a statute establishes a primary dispute resolution mechanism, it must be exhausted before invoking the mainstream courts' jurisdiction. Since the 3rd respondent was a licensee under the Energy Act, No. 1 of 2019, which was in force when the petition was filed, the Tribunal was the proper first forum, and the petitioner offered no explanation for bypassing it. The preliminary objection was upheld and the petition struck out, with the petitioner at liberty to seek redress before the Tribunal subject to limitation. No costs were awarded because the respondents did not evidence when the Tribunal became operational; each party was to bear its own costs.

Key legal issues

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01

Whether the petition offends the doctrine of exhaustion of remedies

Holding

Yes; the dispute fell within the original jurisdiction of the Energy and Petroleum Tribunal under sections 25 and 36 of the Energy Act, and the petitioner did not exhaust that mechanism

Reasoning

The 3rd respondent was a licensee under the Energy Act, No. 1 of 2019, in force at the time of filing. Section 36(3) confers original civil jurisdiction on the Tribunal over disputes between a licensee and a third party. The petitioner filed a constitutional petition without explaining his failure to use the Tribunal, the primary statutory forum; the petition therefore offended the exhaustion doctrine and stood to be struck out.

p. 4
02

Costs of the petition

Holding

No costs awarded

Reasoning

The court declined costs because the respondents did not place before the court evidential material, such as legal notices, showing when the Tribunal was operationalised; parties were to bear their respective costs.

p. 4

Legal principles established

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  • Where a statute establishes an alternative dispute resolution mechanism, that mechanism must be exhausted before invoking the jurisdiction of the mainstream courts
  • Where a clear statutory procedure is prescribed for redress of a grievance, it must be strictly followed before invoking the court's jurisdiction

Court orders

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  1. 1.The 2nd respondent's preliminary objection is upheld to the extent that the petition is struck out on the ground that the petitioner has not exhausted the primary dispute resolution mechanism established under the Energy Act, No. 1 of 2019
  2. 2.No order as to costs of the petition; parties to bear their respective costs
Jurisdiction invoked
Article 23 of the Constitution (petition for enforcement of Bill of Rights), subject to doctrine of exhaustion under the Energy Act, No. 1 of 2019

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, "Nyaga v Attorney General & 2 others (Environment and Land Petition 31 of 2019) [2021] KEELC 1575 (KLR)", Case Analysis (2021). Petition dated 9th May 2019 (filed 3/7/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1575/eng@2021-10-13

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