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ELCStruck OutEnvironment and Land Case Civil Suit E064 of 2022· [2023] KEELC 16799 (KLR)

Charo Gona & 56 others v Kenya Power & Lighting Company

Environment and Land Court
28 March 2023
11,642 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~47 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out 57 residents' case against Kenya Power, ruling they must first take their wayleave dispute to the Energy and Petroleum Tribunal.

What this practically means

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Executive summary

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The Plaintiffs, residents and structure owners at Jomvu Brightstar area, Mombasa, sued Kenya Power & Lighting Company after its agents marked their houses, schools, churches and business premises with 'X' marks on the allegation that the structures lay within a wayleave corridor. By an amended plaint they sought a declaration of quiet possession, a permanent injunction against interference or demolition, an order for a Government Surveyor's report, and costs. The Defendant filed a notice of preliminary objection dated September 29, 2022 contending that the Court lacked jurisdiction because the dispute fell within the Energy Act, 2019 dispute-resolution framework - the Energy and Petroleum Regulatory Authority and the Energy and Petroleum Tribunal - and Section 9 of the Fair Administrative Action Act, 2015. The Plaintiffs countered that the Energy Act did not apply and that the marking was done by KETRACO. Justice L. L. Naikuni framed three issues. First, applying Mukisa Biscuits, he found the objection raised pure points of law and was properly before the court. Second, he held that the Defendant's wayleave conduct was an administrative action affecting the Plaintiffs' rights; the cause of action arose in 2021, after the Energy Act, 2019 came into force, so its mechanisms applied. The Plaintiffs had not exhausted the statutory remedies, and the Tribunal has original civil jurisdiction over licensee-third party disputes and power to grant equitable reliefs including injunctions. The court therefore held it lacked jurisdiction at first instance. The preliminary objection was upheld, the suit struck out, and costs awarded to the Defendant.

Key legal issues

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01

Whether the preliminary objection was properly raised

Holding

The objection was properly filed as it raised serious and pure issues of law fit for determination before trial

Reasoning

Applying Mukisa Biscuits, the court found the objection constituted pure points of law, not fanciful or remote, and requiring no ascertainment of facts, so it could be determined at the preliminary stage before full trial.

p. 19
02

Whether the ELC had jurisdiction given the exhaustion doctrine

Holding

The court lacked jurisdiction; the dispute fell within the Energy and Petroleum Regulatory Authority and Energy and Petroleum Tribunal under the Energy Act, 2019

Reasoning

The Defendant's marking of houses in a wayleave was an administrative action affecting the Plaintiffs' rights. Section 9(2) of the Fair Administrative Action Act bars review before exhaustion of statutory remedies, and Section 36(3) of the Energy Act gives the Tribunal original civil jurisdiction over licensee-third party disputes. The Plaintiffs had not exhausted these mechanisms.

p. 21
03

Applicability of the Energy Act, 2019 to the cause of action

Holding

The Energy Act, 2019 applied since the cause of action arose in 2021, after its enactment

Reasoning

Relying on Samuel Kamau Macharia on retrospectivity, the court held statutes are prima facie prospective; the Plaintiffs' cause of action arose in 2021, after the Energy Act, 2019 came into force, so its dispute resolution mechanisms governed the claim.

p. 20
04

Costs of the objection

Holding

Costs awarded to the successful Defendant as costs follow the event

Reasoning

Under Section 27(1) of the Civil Procedure Act, costs follow the event. The Plaintiffs, aware of statutory mechanisms, prematurely dragged the Defendant to court, which expended considerable resources; the general rule favours the successful party.

p. 22

Legal principles established

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  • Where a statute establishes a dispute resolution mechanism outside the mainstream courts, that mechanism must be exhausted before the courts' jurisdiction is invoked
  • A court without jurisdiction must halt proceedings and cannot arrogate to itself jurisdiction not conferred by law
  • A proper preliminary objection must raise a pure point of law on assumed pleaded facts

Court orders

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  1. 1.That this dispute ought to have been referred to the Energy and Petroleum Tribunal in accordance with the Act
  2. 2.That the Preliminary Objection dated September 29, 2022 be and is hereby upheld and the suit is struck out; the matter stands closed
  3. 3.That the costs of the suit be awarded to the Defendant

Authorities

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Legislation

  • Energy Act, 2019Sections 2, 3(1), 9, 10, 11(e),(f),(i),(k),(l), 23, 24, 25, 26, 12, 13, 36(1),(3),(5),(6), 37, 40, 42, 159(3), 160(3), 167(1)(m), 224(2)(e), Third Schedule
  • Energy (Complaints and Disputes Resolution) Regulations, 2012Regulations 2, 4, 7, 9
  • Constitution of Kenya, 2010Articles 22, 159(2)(c), 162(2), 169(1)(d), 169(2), 258, 260
  • Fair Administrative Action Act, 2015Sections 2, 9(1),(2),(3),(4),(5)
  • Civil Procedure Act, Cap 21Sections 5, 18, 27(1)
  • Judicature ActSection 3
  • Energy Act, 2006 (repealed)Sections 61, 63, 110; paragraph 12(4)
  • Land Registration Act
  • Energy Tribunal Rules, 2008

Cases cited (42)

  • Adero Adero and Another v Ulinzi Sacco Society Limited
    [2002] eKLR

    A court without jurisdiction cannot transfer a suit to a competent court

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

    First opportunity must be given to statutory tribunals to deal with disputes

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

    Courts must exercise restraint where alternative statutory dispute resolution exists

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

    Jurisdiction is the first hurdle; courts have no jurisdiction over matters vested in other arms of government

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

    An incompetent suit cannot be transferred; parties cannot confer jurisdiction by consent

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

    A suit filed without jurisdiction is dead on arrival and cannot be remedied

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

    Jurisdiction can be raised at any stage of proceedings

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

    Constitution-created institutions must be allowed to carry out their mandate

  • Amy Kagendo Mate v Prime Bank Credit Reference Bureau Africa Ltd
    [2013] eKLR

    Petition struck out for bypassing statutory adjudication remedy

  • The Law Society of Kenya v Centre for Human Rights and Democracy & 13 others
    [2013] eKLR

    Scope of courts' jurisdiction dictated by Section 3 of the Judicature Act

  • Joshua Sembei Mutua v Attorney General & 2 others
    [2019] eKLR

    Construction denying power to make orders results in absurdity

  • Abidha Nicholus v Attorney General & 7 others; NECC & 5 others (Interested Parties)
    [2021] eKLR

    Energy Act 2019 prevails over other Acts but not the Constitution; exhaustion under FAA Act

  • Speaker of National Assembly v Njenga Karume
    (1992) 1 KLR 425

    Where a clear procedure for redress is prescribed, it must be strictly followed

  • Cyrus Komo Njoroge v Kiringa Njoroge Gachoka & 2 Others
    [2015] eKLR

    Statutory dispute resolution procedure must be strictly followed

  • Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 Others
    [2018] eKLR

    The word 'shall' in Section 9 of the FAA Act is mandatory

  • Republic v Energy Regulatory Commission & 2 Others
    [2018] eKLR

    Article 159 obliges utilisation of tribunals such as the Energy Tribunal

  • Mutanga Tea & Company Ltd v Shikara Limited & Another
    [2015] eKLR

    Advantages of alternative dispute resolution mechanisms - expertise, expedition, cost

  • Republic v Public Procurement Administrative Review Board & Energy Sectors Contractors Association, Zoec-Zhepedc-Nginu Ex parte Kenya Power & Lighting Company Limited
    [2020] eKLR

    Statutory functionary best equipped to decide; courts intervene only on demonstrated grounds

  • Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others
    [2015] eKLR

    Exhaustion doctrine; courts are fora of last resort

  • Josiah Tatiya Kipelian v Dr. David Ole Nkadienye & 2 Others
    [2014] eKLR

    Provided dispute resolution procedure must be strictly followed

  • Thomas Schering v Nereah Michael Said & Others
    (2019) eKLR

    Energy disputes taken away from mainstream courts to specialised body

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

    Energy disputes are preserve of the Energy Regulatory Commission with appeal to the Tribunal

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

    Preliminary objection upheld; court without jurisdiction must down tools; suit struck out

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

    Energy matters to be heard before the Energy Regulatory Commission

  • Kenya Power and Lighting Co. Ltd v Geofrey Orina Oganga
    [2020] eKLR

    First port of call should be the Energy Regulatory Commission

  • Kenya Power & Lighting Co Limited v Samuel Mandere Ogeto
    [2018] eKLR

    Any disconnection falls within disputes referable to the ERC

  • Peter Muturi Njuguna v Kenya Wildlife Service
    NKU CA Civil Appeal No 260 of 2013 [2017] eKLR

    Specific procedure for redress must be strictly followed

  • Justin Karionji Nyaga v Attorney General & 2 others
    [2021] eKLR

    Doctrine of exhaustion; petition struck out for failure to use Energy and Petroleum Tribunal

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

    Dispute over electricity supply lines referable to the Energy and Petroleum Tribunal

  • Esther Gachambi Mwangi v Samuel Mwangi Mbiri
    [2013] eKLR

    A court must down tools the moment it is without jurisdiction

  • Kenya Sugar Board v Ndungu Gathini
    (2013) eKLR

    Costs follow the event; discretion applied judiciously

  • Joseph Nzyoki Mwanthi v Kenya Power & Lighting Co Ltd
    [2017] eKLR

    Electricity dispute reserved by statute for the Energy Regulatory Commission; appeal dismissed with costs

  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another
    [2016] eKLR

    Costs follow the event; compensating the successful party

  • Republic v Rosemary Wairimu Munene Ex-parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd
    (2014) eKLR

    Basic rule on attribution of costs

  • Jasbir Rai Singh v Tarchalan Singh
    (2014) eKLR

    Costs follow the event; not to penalize the losing party

  • Party of Independent Candidate of Kenya v Mutula Kilonzo & 2 others

    Award of costs is discretionary; general rule costs to the successful party

  • Nedbank Swaziland Ltd v Sandile Dlamini No (144/2010)-2012 SZHC 30
    (2013)

    Underlying principles in awarding costs

  • Mukisa Biscuits Manufacturing Co Limited v West End Distributors Limited
    [1969] EA 696

    Definition and threshold of a preliminary objection - pure point of law

  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR

    Scope, nature and meaning of a preliminary objection

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

    Jurisdiction is everything; a court without jurisdiction must down its tools

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR

    Jurisdiction derived from Constitution or statute; retrospectivity of legislation

  • Benard Murage v Fine Serve Africa Limited & 3 others
    [2015] eKLR

    Where alternative statutory remedy exists, it should be pursued first

Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 (Environment and Land Court); objection founded on the Energy Act, 2019 and the Fair Administrative Action Act, 2015

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, "Charo Gona & 56 others v Kenya Power & Lighting Company", Case Analysis (2023). Environment and Land Case Civil Suit E064 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16799/eng@2023-03-28

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