Charo Gona & 56 others v Kenya Power & Lighting Company
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection was properly raised
The objection was properly filed as it raised serious and pure issues of law fit for determination before trial
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.
Whether the ELC had jurisdiction given the exhaustion doctrine
The court lacked jurisdiction; the dispute fell within the Energy and Petroleum Regulatory Authority and Energy and Petroleum Tribunal under the Energy Act, 2019
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.
Applicability of the Energy Act, 2019 to the cause of action
The Energy Act, 2019 applied since the cause of action arose in 2021, after its enactment
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.
Costs of the objection
Costs awarded to the successful Defendant as costs follow the event
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.
Legal principles established
#- 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
#- 1.That this dispute ought to have been referred to the Energy and Petroleum Tribunal in accordance with the Act
- 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.That the costs of the suit be awarded to the Defendant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.