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ELCAllowedKISII CM ELC Case No. 85 of 2020 (Appeal)· [2022] KEELC 3461 (KLR)

Kenya Power & Lighting Company Ltd v Aminga (Environment and Land Appeal E017 of 2021) [2022] KEELC 3461 (KLR)

Environment and Land Court
21 July 2022
2,001 words in judgment
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The bottom line

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Kenya's courts say land disputes over power lines must go to the Energy and Petroleum Tribunal, not the Magistrate's Court.

What this practically means

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Executive summary

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This was an appeal from a ruling of Hon. E. Obina (SPM) in Kisii CM ELC Case No. 85 of 2020, in which the trial Magistrate dismissed the Appellant's Preliminary Objection challenging the Magistrate's Court's jurisdiction. The underlying suit, filed by plaint dated 18th August 2020, sought a declaration that a power line installed by the Appellant through L.R No. West Kitutu Mwamonari/2025 was illegal, plus general damages and costs, on allegations that the Appellant's agents erected electric poles on the Respondent's land without consent in August 2018. The Appellant's Preliminary Objection argued that the trial court lacked jurisdiction because the Energy Act, 2019 and the Energy (Complaints and Disputes Resolution) Regulations, 2012 vest jurisdiction in the Energy and Petroleum Tribunal. J.M. Onyango J framed a single issue: whether the trial Magistrate erred in finding that the Magistrate's Court had jurisdiction over disputes arising from the Energy Act. The court held that sections 25 and 36 of the Energy Act, 2019 confer exclusive jurisdiction over energy-sector disputes, including disputes between a licensee and a third party, on the Energy and Petroleum Tribunal, which may grant equitable reliefs. The court also treated the Appellant's erection of power lines as an administrative action under the Fair Administrative Actions Act, engaging the exhaustion-of-remedies rule in section 9. It distinguished the Malindi Fleetwood authorities relied on by the trial Magistrate as decided under the repealed Energy Act No. 12 of 2012 and without the jurisdictional issue having been raised. The court followed Elijah Mutahi & 10 others vs Kenya Power and Lighting Company Ltd. The appeal was allowed: the trial ruling was set aside, the Preliminary Objection was upheld, the Respondent's claim was dismissed with costs to the Appellant.

Key legal issues

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01

Whether the Magistrate's Court had jurisdiction over a dispute concerning electricity poles erected on private land under the Energy Act, 2019

Holding

The trial Magistrate erred; the dispute falls within the exclusive jurisdiction of the Energy and Petroleum Tribunal under sections 25 and 36 of the Energy Act, 2019.

Reasoning

Sections 25 and 36 of the Energy Act, 2019 establish the Energy and Petroleum Tribunal and vest it with jurisdiction to hear and determine all matters relating to the energy and petroleum sector, including original civil jurisdiction over disputes between a licensee and a third party, with power to grant equitable reliefs. The dispute concerned electricity poles erected by the Appellant (a licensee) on the Respondent's private land, which is squarely within the Tribunal's mandate. Article 159(2)(c) of the Constitution and section 9 of the Fair Administrative Actions Act reinforce exhaustion of sector-specific remedies before resorting to court.

p. 5
02

Whether the trial Magistrate's reliance on Kenya Power and Lighting Company Ltd vs Malindi Fleetwood Ltd was justified

Holding

The reliance was misplaced; that case was decided under the repealed Energy Act No. 12 of 2012 and the jurisdictional issue was never raised there.

Reasoning

The court distinguished the Malindi Fleetwood decisions relied on by the trial Magistrate, noting that the jurisdictional question was never raised in the Civil Appeal and that the underlying statute, the Energy Act No. 12 of 2012, had been repealed and replaced by the Energy Act No. 1 of 2019, which was the statute engaged by the Preliminary Objection.

p. 5
03

Whether the Appellant's erection of power lines constituted an administrative action requiring exhaustion of remedies

Holding

The Appellant's act of constructing power lines on the Respondent's land was an administrative action affecting the Plaintiff's rights, so remedies under other written law had to be exhausted first.

Reasoning

Relying on section 2 of the Fair Administrative Actions Act, which defines administrative action to include any act, omission or decision affecting the legal rights or interests of any person, the court agreed with the Appellant that erecting power lines on the Respondent's land was an administrative action, and section 9 of the FAAA bars review unless remedies available under other written law (here, the Tribunal process) are first exhausted.

p. 4

Legal principles established

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  • The Energy and Petroleum Tribunal has exclusive original civil jurisdiction over disputes relating to the energy sector between a licensee and a third party, including disputes over energy infrastructure on private land.

Court orders

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  1. 1.Appeal allowed; ruling of the learned trial Magistrate dated 31st August, 2021 set aside
  2. 2.Substituted with an order upholding the Preliminary Objection
  3. 3.Respondent's claim in the lower court dismissed with costs to the Appellant

Authorities

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Legislation

  • Energy Act, No. 1 of 2019Sections 3(1), 10, 11(e)(f)(i)(k)&(l), 23, 24, 25, 36, 40, 42, 224(e)
  • Energy (Complaints and Disputes Resolution) Regulations, 2012Regulations 2, 4, 7 and 9
  • Constitution of Kenya, 2010Articles 22(3), 159(2)(c), 169(1)(d) and (2), 260
  • Fair Administrative Actions ActSections 2, 9(1)-(5)
  • Energy Act, No. 12 of 2012 (repealed)

Cases cited (4)

  • Malindi Fleetwood Ltd vs Kenya Power and Lightning (ELC Case No. 5/2020 Malindi)
  • Kenya Power and Lighting Company Ltd vs Malindi Fleetwood Ltd
    Civil Appeal No. 80 of 2016
  • Scholastica Okwaro vs Taita Taveta County Government
    ELRC No. 11 of 2016 (Mombasa)
  • Elijah Mutahi & 10 others vs Kenya Power and Lighting Company Ltd
    2020 eKLR
On appeal from
Chief Magistrate's Court, Kisii (KISII CM ELC Case No. 85 of 2020)
KISII CM ELC Case No. 85 of 2020
Jurisdiction invoked
First appeal from subordinate court against a preliminary objection ruling under the Energy Act, 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, "Kenya Power & Lighting Company Ltd v Aminga (Environment and Land Appeal E017 of 2021) [2022] KEELC 3461 (KLR)", Case Analysis (2022). KISII CM ELC Case No. 85 of 2020 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3461/eng@2022-07-21

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