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ELCOtherNot stated in the judgment excerpt· [2022] KEELC 1516 (KLR)

Robert Karani v Kenya Power Company Limited [2022] KEELC 1516 (KLR)

Environment and Land Court
8 February 2022
MOMOGENI
601 words in judgment
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The bottom line

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A Kenyan court confirmed that land disputes involving power cables belong in the Environment and Land Court, not the energy regulator, so the case can proceed.

What this practically means

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Executive summary

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The Defendant filed a preliminary objection dated 09/07/2021 contending that the Environment and Land Court lacked jurisdiction to hear the Plaintiff's suit, arguing that the dispute fell within the mandate of the Energy and Petroleum Regulatory Authority under sections 3(1), 11(e), (f), (i), (k) & (l) and 36 of the Energy Act, 2019 and Regulations 2 and 4 of the Energy (Complaints and Disputes Resolution) Regulations, 2012. The suit, by an amended plaint dated 24/06/2013, sought a declaration of trespass on Plot No. 103 of 6485/182 Embakasi Utawala Estate, mesne profits from 4 November 2011, general damages for trespass and for psychological and emotional suffering, special damages of Ksh.14,000, costs, and an order compelling the Defendant to relocate its high voltage power cables from the plot. The objection was canvassed by written submissions. Relying on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, the court reiterated that jurisdiction is everything and a court without it must down its tools. Examining the pleadings, the court found that although the dispute concerned electricity cables, the plaintiff was essentially pursuing a land trespass claim whose principal relief was relocation of the cables from the suit property, which did not fall within the disputes reserved to the Authority. The preliminary objection was accordingly dismissed on 8 February 2022, with the court directing that it is so ordered.

Key legal issues

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Whether the Environment and Land Court lacks jurisdiction over a trespass claim seeking relocation of high voltage power cables, because the dispute falls to the Energy and Petroleum Regulatory Authority under the Energy Act, 2019

Holding

The objection fails; the claim, though concerning electricity cables, is essentially a land trespass claim seeking relocation of cables and does not fall within the disputes reserved to the Authority.

Reasoning

The court examined the amended plaint and observed that although the complaint arises from the Defendant's high voltage power cables passing over the plaintiff's plot, the plaintiff mainly seeks an order compelling relocation of the cables from the suit property, together with declarations, mesne profits and damages for trespass. Such a claim is not one of the disputes listed under sections 3, 11 and 36 of the Energy Act or Regulations 2 and 4 of the 2012 Regulations. The objection was therefore dismissed.

p. 2

Legal principles established

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  • Jurisdiction is foundational; a court without jurisdiction must down its tools at the earliest stage
  • Where the primary relief sought falls outside the statutory dispute-resolution mandate of the Energy and Petroleum Regulatory Authority, the Energy Act does not oust the court's jurisdiction

Court orders

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  1. 1.The Preliminary Objection dated 09/07/2021 is dismissed

Authorities

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Legislation

  • Energy ActSections 3(1), 11(e), (f), (i), (k) & (l), 36
  • Energy (Complaints and Disputes Resolution) RegulationsRegulations 2 and 4

Cases cited (1)

  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the land dispute; the objection invoked sections 3(1), 11(e), (f), (i), (k) & (l) and 36 of the Energy Act, 2019 and Regulations 2 and 4 of the Energy (Complaints and Disputes Resolution) Regulations, 2012

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, "Robert Karani v Kenya Power Company Limited [2022] KEELC 1516 (KLR)", Case Analysis (2022). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1516/eng@2022-02-08

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