Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCivil Case No E307 of 2021· [2022] KEELC 556 (KLR)

Cape Suppliers Limited v Kenya Power & Lighting Company Plc [2022] KEELC 556 (KLR)

Environment and Land Court
15 March 2022
MOMogeni
1,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed it can hear trespass claims against electricity companies that install poles on private land without consent.

What this practically means

#

Executive summary

#
The defendant raised a Notice of Preliminary Objection dated 17/09/2021 arguing that the Environment and Land Court lacked jurisdiction because the dispute fell to be determined by the Energy and Petroleum Regulatory Authority under sections of the Energy Act, 2019 and the Energy (Complaints and Disputes Resolution) Regulations, 2012, read with Articles 159(2)(c) and 169 of the Constitution and Sections 9(2) and (3) of the Fair Administrative Actions Act. The suit itself was a trespass claim: the plaintiff alleged the defendant entered Land Reference No. 36/IV/14 (20A) in Eastleigh, Nairobi and erected electricity poles to carry 66KV high voltage lines without consent or notice, occasioning damage, and sought a declaration of trespass and damages. The objection was canvassed by written submissions. Applying the Owners of the Motor Vessel 'Lillian S' principle that a court without jurisdiction must down its tools, Mogeni J framed the sole issue as whether the court had jurisdiction. The court held the gravamen was illegal entry onto and use of land - trespass - a dispute relating to occupation and use of land within Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. Claims for general, compensatory damages and loss of income were matters of fact for trial, not matters reserved for the Authority. The preliminary objection was dismissed with costs to the plaintiff on 15 March 2022.

Key legal issues

#
01

Whether the court has jurisdiction over a trespass claim arising from the erection of electricity poles and high voltage lines on private land, given the dispute-resolution mechanisms under the Energy Act, 2019

Holding

The court has jurisdiction; the claim is a land use and occupation dispute within Article 162(2)(b) and Section 13 of the Environment and Land Court Act, and does not fall within the preserve of the Energy and Petroleum Regulatory Authority.

Reasoning

The plaintiff's gravamen was unlawful entry onto land and erection of electricity poles for high voltage lines without consent or notice. The court characterised this as trespass, a dispute relating to occupation and use of land. Given the broad jurisdictional framework of Article 162 and Section 13 of the ELC Act, the defendant's contention that the Energy Act mechanisms ousted the court's jurisdiction was rejected. Claims for damages were matters of fact for the hearing, not for the Authority.

p. 2
02

Whether claims for general damages, compensatory damages and loss of income are matters reserved for the Energy and Petroleum Regulatory Authority

Holding

No - these are matters of fact to be deliberated at the hearing and do not fall under disputes that are the preserve of the Authority.

Reasoning

The court noted the plaintiff sought compensation in general damages, compensatory damages and loss of income as pleaded in the plaint. It held these are questions of fact for trial before the court, and that the claim did not fall within the categories of disputes assigned to the Authority under the Energy Act and its Regulations.

p. 2

Legal principles established

#
  • A dispute concerning entry onto and use of land, even for the purpose of supplying electric power, is a dispute relating to the use and occupation of land within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act.
  • A court without jurisdiction must down its tools at the earliest stage of proceedings.

Court orders

#
  1. 1.The Notice of Preliminary Objection dated 17/09/2021 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiff

Authorities

#

Legislation

  • Energy ActSections 3(1), 10, 11(e), (f), (i), (k) & (l), 23, 24, 36, 40, 42, 224(2)(e)
  • Energy (Complaints and Disputes Resolution) RegulationsRegulations 2, 4 and 9
  • Constitution of KenyaArticles 159(2)(c), 162(2)(b), 169(1)(d) and (2)
  • Fair Administrative Actions ActSections 9(2) and (3)
  • Environment and Land Court ActSections 13(1), 13(2)(a)-(e)

Cases cited (1)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Cape Suppliers Limited v Kenya Power & Lighting Company Plc [2022] KEELC 556 (KLR)", Case Analysis (2022). Civil Case No E307 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/556/eng@2022-03-15

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