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ELCStruck OutEnvironment and Land Case Civil Suit 28 of 2021· [2022] KEELC 13765 (KLR)

Kiringo (168) v Kenya Electricity Transmission Company Limited (KETRACO) & 3 others

Environment and Land Court
28 October 2022
4,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a 169-plaintiff land compensation suit, ruling energy disputes must first go to the Energy and Petroleum Tribunal.

What this practically means

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Executive summary

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This ruling by M.A. Odeny, J of the Environment and Land Court at Malindi determined two preliminary objections by the 1st and 2nd Defendants against a representative suit by 169 plaintiffs claiming ownership of land in Mguruleni, Kasimbiji and Ganda in Malindi sub-county, traversed by a KETRACO electricity transmission line way-leave without consent or compensation. The 1st Defendant objected that sixteen plaintiffs lacked written authority under Order 1 rule 13 and Order 4 rule 1(2) of the Civil Procedure Rules, and that the school and two mosques could not sue through an individual. The 2nd Defendant objected that the court lacked jurisdiction, the dispute belonging to the Energy and Petroleum Tribunal and Regulatory Authority under the Energy Act 2019. The court held that written authority to plead for co-plaintiffs is mandatory, but exercised discretion to allow the individual non-compliant plaintiffs fourteen days to regularize. However, the 167th, 168th and 169th plaintiffs - a public school and two registered mosques - could not be rescued by mere authority, since a school sues only through its Board of Management and a registered society through its officials or trustees; the suit was struck out against them. On jurisdiction, applying United Millers and Albert Chaurembo, the court held that Section 36 of the Energy Act vests original civil jurisdiction over licensee-third-party disputes in the Energy and Petroleum Tribunal, which can grant equitable reliefs, and upheld the 2nd Defendant's objection, striking out the entire suit with costs to the 2nd Defendant.

Key legal issues

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01

Authority of one plaintiff to plead for others in a representative suit

Holding

The 3rd, 40th, 58th, 67th, 68th, 81st, 87th, 129th, 131st, 132nd, 136th, 154th, 158th and 159th plaintiffs may regularize; the 167th, 168th and 169th cannot because the school and mosques must sue through their boards or trustees

Reasoning

Order 1 rule 13 and Order 4 rule 1(3) require written authority filed in the case. The court has discretion to allow regularization of minor anomalies that do not go to the root of the case, exercised judiciously. But the school and religious institutions need more than authority to plead: they must sue through a Board of Management or registered trustees, and no such authority was demonstrated.

p. 7
02

Jurisdiction of the ELC over a way-leave/compensation dispute under the Energy Act 2019

Holding

The court lacks jurisdiction; the dispute falls to the Energy and Petroleum Tribunal under Section 36 of the Energy Act

Reasoning

Section 36(3) of the Energy Act gives the Tribunal original civil jurisdiction over disputes between a licensee and a third party, and Section 36(5) empowers it to grant equitable reliefs including injunctions and damages. Following United Millers and Albert Chaurembo, the specialised forum must be given first opportunity. The plaintiffs' claim concerns installation of an electrical transmission line, an energy-sector dispute.

p. 8

Legal principles established

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  • Authority under Order 1 rule 13 to plead for co-plaintiffs must be in writing and filed in the case; it is mandatory
  • A public school can only sue through its Board of Management, and a registered society or religious institution only through its officials or trustees
  • Where a statute confers jurisdiction on a specialised tribunal, first opportunity must be given to that tribunal before resort to superior courts

Court orders

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  1. 1.The 2nd Defendant's Preliminary Objection on jurisdiction is upheld and the suit is struck out with costs to the 2nd Defendant
  2. 2.The Preliminary Objection succeeds in so far as the 167th, 168th and 169th plaintiffs are concerned and the suit is struck out against the Defendants
  3. 3.The other plaintiffs are granted 14 days to regularize if the Preliminary Objection by the 2nd Defendant is not upheld

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 1 Rule 13; Order 4 Rule 1(2) and 1(3)
  • Energy Act 2019Sections 3(1), 10, 11(e),(f),(i),(k),(l), 23, 24, 26, 36, 40, 42, 46, 171, 173, 224(2)(e)
  • Energy (Complaints and Disputes Resolution) Regulations 2012Regulations 2, 4, 7 and 9
  • Constitution of Kenya, 2010Articles 159(2)(c), 169(1)(d) and (2)
  • Fair Administrative Action Act, 2015Section 9(2) and (3)
  • Education Act, Cap 211 (repealed)Section 10(2)(2)
  • Basic Education Act No 14 of 2013Section 55(1)(b) as read with 4th Schedule Part 1, Section 1
  • Societies Act, Cap 108Section 3
  • Environment and Land Court ActSection 13(1) and (2)

Cases cited (27)

  • Shadrack Mwamuu Nzioka & 2 others v Tropical Blooms Limited
    [2020] eKLR

    Members who never gave written authority cannot be parties as plaintiffs

  • Research International East Africa Ltd v Julius Arisi & 213 Others
    [2007] eKLR

    Each plaintiff must verify by affidavit unless written authority to a co-plaintiff is filed

  • Beatrice Tilitei & another v William Kibet Chiboi
    [2017] eKLR

    The Board of Management is the body that can sue or be sued for a public school

  • Mavoko Land Development Company Limited v Mlolongo Catholic Church & 2 others
    [2022] eKLR

    A society registered under the Societies Act can only sue or be sued through its officials

  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    SC Petition No 3 of 2016, [2019] eKLR

    First opportunity must be given to statutory tribunals before superior courts

  • United Millers Ltd v Kenya Bureau of Standards, Directorate of Criminal Investigations & 5 Others
    [2021] eKLR

    Echoed Albert Chaurembo on specialised statutory forums

  • Joseph Njuguna Mwaura & 2 others v Republic
    [2013] eKLR

    Jurisdiction principles

  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel
    [2016] eKLR

    Jurisdiction principles

  • Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service
    [2019] eKLR

    Jurisdiction principles

  • Kenya Ports Authority v Modern Holdings [EA] Limited
    [2017] eKLR

    Jurisdiction principles

  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Jurisdiction must be determined at the outset

  • John Musakali v Speaker County of Bungoma & 4 others
    [2015] eKLR

    Constitution-created institutions must be allowed to function

  • Thomas Schering v Nereah Michael Said & 3 Others
    [2019] eKLR

    Energy disputes belong to the statutory forum

  • Alice Mweru Ngai v Kenya Power & Lighting Co Ltd
    [2015] eKLR

    Similar suit struck out for failure to approach the statutory dispute-resolution forum

  • James Kibugi Githinji v Kenya Power & Lighting Company Limited
    [2016] eKLR

    Energy disputes belong to the statutory forum

  • James Mwaura Ndung'u v Kenya Power and Lighting Co Ltd
    [2016] eKLR

    Energy disputes belong to the statutory forum

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696

    Principles of preliminary objection

  • Jonathan Munene v Attorney General & 2 others; Kenya Judges Welfare Association (Interested Party)
    [2021] eKLR

    Definition of cause of action

  • Carton Manufacturers Limited v Prudential Printers Limited
    [2013] eKLR

    Cause of action definition quoting Drummond Jackson

  • Republic v Returning Officer of Kamkunji Constituency & the Electoral Commission of Kenya
    HCMCA No 13 of 2008 [2008] eKLR

    Statutory provisions should not oust court jurisdiction absent clear language

  • Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 2 Others
    [2018] eKLR

    ELC's broad jurisdiction over land disputes

  • Joseph Muindi Mutua & 5 others v Boniface M Muunda & another
    [2022] eKLR

    Failure to file authority can be regularized without striking out where no prejudice

  • Hezekia Kipkorir Maritim & 10 others v Philip Kipkoech Tenai & 2 others
    [2016] eKLR

    Whether first plaintiff lacked authority to swear on behalf of others

  • Evans Otiende Omollo v School Committee Union Primary School and Another
    Kisumu ELC Case No 225 of 2014 (2015) eKLR

    School committees are the legal entities capable of being sued under the Basic Education Act

  • Headmistress Menengai Primary School & another v Jamila Anyona
    [2006] eKLR

    School committee, not headmistress or PTA, can sue or be sued

  • Vitalis Ouma Osano v Kenya Power and Lighting Company PLC
    [2021] eKLR

    Energy infrastructure disputes on private land must go to the Energy and Petroleum Tribunal

  • Council v Trans Mara County Council & Another
    [2000] eKLR

    Cited within United Millers on jurisdiction

Jurisdiction invoked
Environment and Land Court Act, Section 13(1) and (2) (disputed; court ultimately held it lacked jurisdiction over the energy dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kiringo (168) v Kenya Electricity Transmission Company Limited (KETRACO) & 3 others", Case Analysis (2022). Environment and Land Case Civil Suit 28 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13765/eng@2022-10-28

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