Kenya Power & Lighting Company Ltd v Aminga (Environment and Land Appeal E017 of 2021) [2022] KEELC 3461 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Magistrate's Court had jurisdiction over a dispute concerning electricity poles erected on private land under the Energy Act, 2019
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.
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.
Whether the trial Magistrate's reliance on Kenya Power and Lighting Company Ltd vs Malindi Fleetwood Ltd was justified
The reliance was misplaced; that case was decided under the repealed Energy Act No. 12 of 2012 and the jurisdictional issue was never raised there.
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question was never raised in the Civil Appeal and that the underlying statute, the Energy Act No. 12 of 2012, had been repealed and replaced by the Energy Act No. 1 of 2019, which was the statute engaged by the Preliminary Objection.
Whether the Appellant's erection of power lines constituted an administrative action requiring exhaustion of remedies
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.
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.
Legal principles established
#- 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
#- 1.Appeal allowed; ruling of the learned trial Magistrate dated 31st August, 2021 set aside
- 2.Substituted with an order upholding the Preliminary Objection
- 3.Respondent's claim in the lower court dismissed with costs to the Appellant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.