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ELCDismissedEnvironment & Land Case E23 of 2021· [2022] KEELC 13777 (KLR)

M'tuamwari v Kenya Power and Lighting Company

Environment and Land Court
26 October 2022
1,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya Power cannot force landowners into energy-sector tribunals before suing for trespass; the Environment and Land Court can hear these cases directly.

What this practically means

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Executive summary

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The plaintiff, registered owner of LR No Nyambene/Uringu/1/1023 in Tigania West, sued Kenya Power and Lighting Company for trespass, alleging the defendant entered his land, dug holes and erected electricity posts over an area measuring 627.59 metres without authority, and cut down 77 manmade trees, causing special damages of Kshs 875,200/=. He sought a permanent injunction, special damages, removal of the electricity posts and general damages for trespass. The defendant filed a preliminary objection dated 5.8.2021 contending that the court lacked jurisdiction by dint of the Energy Act, 2019 and the Energy (Complaint and Dispute Resolution) Regulations, 2012, which confer jurisdiction on the Energy & Petroleum Tribunal, and that the plaintiff should have resorted to the Energy and Petroleum Regulatory Authority or the Small Claims Court; it also pleaded limitation bars. Parties canvassed the objection by written submissions. The defendant relied on Owners of Motor Vessel Lilian 'S' and related authorities urging the court to down its tools and strike out the suit. The plaintiff invoked Article 162(2)(b) of the Constitution and sections 3, 4 and 13 of the Environment and Land Court Act. Nzili, J applied the Court of Appeal's decision in KPLC v Ringera, which held that nothing bars an aggrieved party from seeking redress in court before exhausting the inbuilt dispute resolution mechanisms in the Energy Act. The court noted the defendant had not pleaded that permission under section 46 of the Energy Act or notice under section 143 of the Land Act was obtained or served. The preliminary objection was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the ELC has jurisdiction over a trespass claim against a power licensee notwithstanding the Energy Act dispute resolution framework

Holding

The preliminary objection lacks merit; the ELC is seized of jurisdiction under Article 162(2)(b) and the ELC Act, and the Energy Act mechanisms do not oust the court's jurisdiction over trespass claims.

Reasoning

The court applied binding Court of Appeal authority (KPLC v Ringera) holding that nothing bars an aggrieved party from seeking redress in court before exhausting the inbuilt dispute resolution mechanisms in sections 46 and 50 of the Energy Act. The plaintiff's case is founded on trespass under section 46 of the Energy Act; the defendant did not plead that permission under section 46 and section 143 of the Land Act was sought and obtained, nor that notice and a statement of particulars were served. The authorities relied on by the defendant were distinguishable.

Legal principles established

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  • Nothing bars an aggrieved party from seeking redress in court for trespass before exhausting inbuilt out-of-court dispute resolution or compensatory mechanisms under the Energy Act.
  • Once trespass to land is established, it is actionable per se with no proof of damage being necessary for the court to award damages.
  • Every continuance of a trespass is a fresh trespass.

Court orders

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  1. 1.The preliminary objection dated 5.8.2021 is dismissed
  2. 2.Costs of the preliminary objection awarded to the plaintiff

Authorities

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Legislation

  • Energy Actsections 3(1), 10, 11(e)-(l), 23, 24, 36, 40, 42, 46, 50, 169(1)(a), 224(2)(e)
  • Energy (Complaint and Dispute Resolution) Regulationregulations 2, 4, 7 & 9
  • Constitution of Kenyaarticles 159(2), 162(2)(b), 169(1)(d)(b) & 2
  • Fair Administrative Action Actsections 9(b) & (3)
  • Limitation of Actions Actsection 4(2)
  • Public Authorities Limitations Actsection 3(4)
  • Small Claims Court Actsection 12
  • Environment and Land Court Actsections 3, 4 & 13
  • Trespass Actsection 3(1)
  • Land Registration Actsection 28(1)
  • Land Actsections 143-149

Cases cited (34)

  • Owners of Motor Vessel Lilian "S" v Caltex Oil (19) Ltd
    (1989) eKLR

    A court must down its tools where it lacks jurisdiction

  • Elijah Mulahi & 10 others v KPLC
    (2020) eKLR

    Cited by defendant on jurisdiction; held distinguishable

  • Joseph Njuguna Mwaura & 20 others v Republic
    (2013) eKLR
  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696

    Definition and approach to preliminary objections

  • Vitalis Ouma Osan v KPLC
    (2021) eKLR
  • Equity Bank Ltd v Bruce Mutie Mutuku t/a Dicius Tour & Travel
    (2016) eKLR
  • Phoenix of EA Assurance Co Ltd v SM Thiga t/a Newspaper Service
    (2019) eKLR
  • AG & another v Andrew Maina Githinji & another
    (2016) eKLR
  • Samuel Kamau Macharia & another v KCB & 2 others
    (2012) eKLR

    Jurisdiction is conferred by law, not by consent

  • Amy Kagendo Mate v Prime Bank Credit Reference Bureau Africa Ltd
    (2013) eKLR
  • Kakuta Maina, Hamisi v Peris Pesi Tobiko & 2 others
    (2013) eKLR
  • John Musakali v Speaker County of Bungoma & 4 others
    (2015) eKLR
  • Night Rose Cosmetics (1972) Ltd v Nairobi County Government & another
    (2018) eKLR
  • Republic v Energy Regulatory Commission & 2 others
    (2008) eKLR
  • Mutanga Tea & Coffee Ltd v Shikara Ltd & another
    (2015) eKLR

    Jurisdiction of a court is regulated by the Constitution and statute

  • Bernard Murage v Fine Serve Africa Ltd & 2 others
    (2015) eKLR
  • Kenya Sugar Board v Ndugu Gathini
    (2013) eKLR
  • Joseph Nzyoki Mwanthi v KPLC
    (2017) eKLR
  • Cecilia Karuru Ngaya v BBK & another
    (2016) eKLR
  • Republic v Rosemary Wairimu Munene exparte applicant v Ihururu Dairy Farmers Cooperative Society Ltd
  • Kenya Hotels Properties Ltd v AG & 5 others
    (2018) eKLR

    Cited by plaintiff on ELC jurisdiction

  • IEBC v Jane Cheprenger & 2 others
    (2015) eKLR

    Cited by plaintiff on jurisdiction

  • John Kiragu Kimani v Rural Electrification Authority
    (2018) eKLR

    Definition of trespass citing Clark & Lindsell on Torts

  • AG v Halal Meat Products Ltd
    (2016) eKLR

    Entitlement to mesne profits where deprived of property

  • Ajit Bhogal v KPLC
    (2020) eKLR

    Permission and statement of particulars required before entering land to lay electric supply

  • Duncan Nderitu Ndegwa v KPLC Ltd & another
    (2013) eKLR

    Trespass to land is actionable per se

  • Mulwa v Muthaga Mweke
    (2016) eKLR

    Every continuance of a trespass is a fresh trespass

  • Nguruman Ltd v Shompole Group & 3 others
    (2007) eKLR

    Every continuance of a trespass is a fresh trespass

  • Samuel Motari Nyambati v KPLC
    (2018) eKLR
  • Richard Buddy Okemwa & another v KPLC
    (2013) eKLR
  • KPLC v Ringera & 2 others
    Civil Appeal E24 and 248 of 2020 (Consolidated) (2022) KECA 104 KLR (February 4, 2022)

    Nothing bars an aggrieved party from seeking redress in court before exhausting Energy Act dispute resolution mechanisms

  • Fleetwood Enterprises Ltd v KPLC
    (2015) eKLR
  • KPLC v Fleetword Enterprises Ltd
    (2017) eKLR
  • Capital Fish (K) Ltd v KPLC
    (2016) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with sections 3, 4 & 13 of the Environment and Land Court Act

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, "M'tuamwari v Kenya Power and Lighting Company", Case Analysis (2022). Environment & Land Case E23 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13777/eng@2022-10-26

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