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ELCOther· [2022] KEELC 1334 (KLR)

Rosewa Agencies Limited v Kenya Power & Lighting Company Limited [2022] KEELC 1334 (KLR)

Environment and Land Court
23 February 2022
MOMOGENI
1,384 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear trespass claims against electricity companies over power lines on private land.

What this practically means

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Executive summary

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The plaintiff sued the defendant (an electricity supplier) seeking a permanent injunction against trespass, a mandatory injunction to remove electricity poles, power lines and excavated holes on LR No. 18697/4 (43.23 hectares in Juja, Kiambu County), and in the alternative compensation of Kshs. 82,528,875.00 for the allegedly compulsorily acquired 1.14 hectare portion, plus statutory interest under Section 117 of the Land Act, general damages for trespass, mesne profits from June 2014, and costs. The defendant filed a Notice of Preliminary Objection dated 22/10/2021 contending that the court lacks jurisdiction under Sections 9, 10, 25, 36, 37 and 160 of the Energy Act No. 1 of 2019 and Regulations 4, 7 and 8 of the Energy (Complaints and Disputes Resolution) Regulations, 2012, the dispute being reserved for the Energy and Petroleum Regulatory Authority. The objection was canvassed by written submissions. Relying on the Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd on the foundational nature of jurisdiction, Mogeni J held that the plaintiff's gravamen is alleged illegal entry onto and use of land for supplying electric power, amounting to trespass, and is therefore a dispute relating to occupation and use of land within the broad jurisdiction conferred by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The alternative compensation claims were held not to fall within the disputes reserved for the Authority. The preliminary objection was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the ELC has jurisdiction over a claim for trespass by an electricity provider erecting poles and power lines on private land

Holding

The court has jurisdiction. The gravamen of the suit is illegal entry onto and use of land, which is a land use and occupation dispute within Article 162(2)(b) and Section 13 of the ELC Act; it is not a dispute reserved for the Energy and Petroleum Regulatory Authority.

Reasoning

The court characterized the plaintiff's grievance as one concerning alleged illegal entry onto and illegal use of land for supplying electric power, amounting to trespass. Reading Article 162 of the Constitution and Section 13(1) and (2) of the Environment and Land Court Act, which confer broad jurisdiction over disputes relating to land use and occupation, the court concluded the claim does not fall within the preserve of the Authority under the Energy Act and its Regulations. The alternative claims for compensation and mesne profits are matters of fact for trial.

p. 2

Legal principles established

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  • A dispute relating to alleged illegal entry onto and use of land for the purpose of supplying electric power is a dispute relating to the occupation and use of land falling 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, and is not a matter reserved for the Energy and Petroleum Regulatory Authority.

Court orders

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  1. 1.The Preliminary Objection dated 22/10/2021 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13(1) and (2)
  • Energy ActSections 9, 10, 25, 36, 37 and 160
  • Energy (Complaints and Disputes Resolution) Regulations, 2012 (LN42/2021)Regulations 4, 7 and 8
  • Land ActSection 117

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

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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, "Rosewa Agencies Limited v Kenya Power & Lighting Company Limited [2022] KEELC 1334 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1334/eng@2022-02-23

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