Amaka Development Limited v Kenya Electricity Transmission Company Limited (KENTRACO) & another (Environment & Land Case 84 of 2021) [2022] KEELC 2363 (KLR)

The court distinguished between disputes arising from the generation, transmission, distribution, supply and use of electrical energy (which fall under the Energy Act), and disputes concerning land, environment and compensation for destruction of property. The Plaintiff's cause of action was founded on the destruction of trees on its land, not on any contractual or statutory relationship with the licensee under the Energy Act. Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act confer original jurisdiction on the ELC over all disputes relating to environment and land.

The court acknowledged that Section 36 of the Energy Act, 2019 establishes the Energy and Petroleum Tribunal with jurisdiction over disputes arising from the Energy Act. However, the court held that the doctrine of exhaustion of alternative dispute resolution mechanisms only applies where the alternative forum has jurisdiction over the subject matter of the dispute. Since the Tribunal's mandate is limited to disputes connected to the energy sector framework and not general land-based tort claims, the Plaintiff was not obliged to invoke the Tribunal's jurisdiction before approaching the ELC.