M'tuamwari v Kenya Power and Lighting Company
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a trespass claim against a power licensee notwithstanding the Energy Act dispute resolution framework
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.
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
#- 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
#- 1.The preliminary objection dated 5.8.2021 is dismissed
- 2.Costs of the preliminary objection awarded to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.