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ELCStruck OutEnvironment & Land Petition E008 of 2022· [2023] KEELC 18348 (KLR)

Wachu & another v Kenya Electricity Transmission Company Limited

Environment and Land Court
22 June 2023
5,259 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a community land compensation petition because the claimants skipped the Energy Act's required dispute process and lacked authority to sue.

What this practically means

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Executive summary

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The Respondent, Kenya Electricity Transmission Company Limited (KETRACO), raised a preliminary objection seeking the striking out of the Petitioners' Petition and Notice of Motion dated 1st March 2022, which sought declarations that KETRACO's acquisition of unregistered community land at Biksidera and Kalkacha sub-locations in Tana River County violated Articles 40, 47 and 63, a permanent injunction, valuation of the land, and general and exemplary damages. The Respondent argued the ELC lacked jurisdiction because compensation for wayleave acquisition is governed by Section 148 of the Land Act and Sections 170-175 of the Energy Act 2019, with the Energy and Petroleum Tribunal having first jurisdiction; that the Petitioners lacked locus standi, standing being vested in the County Government or Governor under Article 63(3) and Section 6(1) of the Community Land Act; that they had no authority to represent the communities; and that a similar Petition (Malindi ELC No. E009 of 2021) had been settled. Makori J applied the Mukisa Biscuits definition of a preliminary objection, the Motor Vessel Lillian S principle on jurisdiction, and the Supreme Court's Kibos doctrine of judicial abstention as elaborated in Abidha Nicholus and United Millers, holding that the statutory three-tier Energy Act mechanism had to be exhausted first. The court also found the Petitioners were not trustees of the community land and had no written authority from those they purported to represent. Allowing the preliminary objection, the court dismissed the entire Petition and Application with costs.

Key legal issues

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01

Jurisdiction and the doctrine of judicial abstention/exhaustion

Holding

The Energy and Petroleum Tribunal has first jurisdiction over compensation disputes for wayleave acquisition under the Energy Act 2019; the Petitioners never invoked it, so the ELC should abstain

Reasoning

The Energy Act lays a three-tier framework: complaint to EPRA, appeal to the Energy and Petroleum Tribunal, and appeal to the ELC under section 37(2). Relying on Kibos, Abidha Nicholus and United Millers, the court held the statutory path must be followed and the constitutional issues reserved pending the Tribunal's determination.

p. 6
02

Locus standi to sue on behalf of unregistered community land

Holding

Under Article 63(3) of the Constitution and Section 6(1) of the Community Land Act, suits concerning unregistered community land are the preserve of the County Government or Governor, not the Petitioners

Reasoning

The Petitioners are neither trustees of the unregistered community land nor holders of the office of Governor of Tana River County. The court agreed with the Respondent that the County Government or Governor alone has standing to bring such a suit.

p. 8
03

Representative capacity and authority

Holding

The Petitioners produced no written authority, consent letters, minutes or local administration letters from the communities they purported to represent, so they lack standing to sue for others

Reasoning

Following Shadrack Mwamuu Nzioka v Tropical Blooms and the authorities on Order 1 Rules 8 and 13 of the Civil Procedure Rules, a representative suit requires written authority. Without it, the Petition relates only to the Petitioners themselves, and beneficiaries of any compensation would be unidentifiable.

p. 9
04

Constitutional underpinning of the claim

Holding

Compensation for wayleave acquisition is a statutory entitlement under Section 148 of the Land Act and Sections 170-175 of the Energy Act 2019, not a constitutional claim

Reasoning

Applying Sumayya Athmani Hassan and the constitutional avoidance doctrine, where statute provides a complete framework for compensation, a litigant cannot bypass it by framing the claim as a constitutional petition.

p. 2
05

Sub-judice / prior settlement of similar claims

Holding

A substantially similar Petition (Malindi ELC No. E009 of 2021) covering the same issues was settled with payment of Kshs 171,394,662.71 to communities along the Garsen-Hola-Bura-Garissa Transmission Line

Reasoning

The court perused the file in Petition No. 9 of 2021, noting the same lawyers acted, the same issues were raised, and the matter was resolved through an out-of-court settlement with monies deposited in an account run by the County Government of Tana River.

p. 10

Legal principles established

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  • Where legislation has been enacted to give effect to a constitutional right, a litigant may not found a cause of action directly on the Constitution without challenging the legislation (constitutional avoidance)
  • Where a statute establishes a dispute resolution mechanism, that mechanism must be the first port of call and courts should exercise judicial abstention
  • A person suing in a representative capacity must show written authority from those represented

Court orders

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  1. 1.The Preliminary Objection is allowed
  2. 2.The entire Petition and the pending Application dated 1st March 2022 are dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 40, 47, 50, 63(3), 162(2), 163(4)(a)
  • Energy Act, 2019Sections 9, 25, 36(1) and (5), 37(2), 37(3), 170-174, 175
  • Land Act, No. 6 of 2012Section 148
  • Community Land ActSection 6(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 4(2)(ii)
  • Civil Procedure RulesOrder 1 Rules 8 and 13; Order 4 Rule 4

Cases cited (23)

  • Nganda Kalandi v Timothy Mutinda Nzioka
    [2012] eKLR

    Court declining to grant a prayer for injunction not craved in the main suit

  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR

    Constitutional avoidance - litigant cannot found cause of action directly on the Constitution where statute covers the right

  • Emmanuel Nyongesa & 34 others v County Government of Trans Nzoia
    [2021] eKLR

    Courts lose jurisdiction through the principle of constitutional avoidance

  • Ibrahim Wakhanyanga & 2 others v Chief Magistrate's Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega (Interested party)
    [2022] eKLR

    Affirming constitutional avoidance principle

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

    Referring compensation dispute to the energy sector regulator - exhaustion

  • Vitalis Ouma Osan v Kenya Power & Lighting Co. Ltd
    [2021] eKLR

    Doctrine of exhaustion in energy compensation disputes

  • Nathan Ombati Soire & 7 others v Kenya Power & Lighting Company Limited
    [2021] eKLR

    Doctrine of exhaustion in energy compensation disputes

  • Macfoy v United Africa Co. Ltd
    [1961] 3 All ER

    A suit filed in a court without jurisdiction or contrary to procedure is a nullity

  • Shadrack Mwamuu Nzioka & 2 others (suing on their behalf as officials of Crescent Self Help Group) v Tropical Blooms Limited
    [2020] eKLR

    Parties who have not given written authority cannot be parties to a representative suit

  • Kakisegei Clan v Katemuge & another; AG (Interested Party)
    [2020] eKLR

    Any member of an affected community may sue regarding unregistered land - cited by Petitioners

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

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

  • Sella Rose Anyango v Attorney General & 2 others
    [2021] eKLR

    Objection not purely on points of law - cited by Petitioners

  • Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others
    [2004] eKLR

    Preliminary objection lacking specifics is defective - cited by Petitioners

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction must be raised earliest; without jurisdiction a court down tools

  • Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties)
    [2023] eKLR

    Doctrine of abstention; three-tier Energy Act dispute resolution mechanism

  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 Others
    [2020] eKLR, Petition 3 of 2020

    Judicial abstention doctrine - reserve constitutional issues pending statutory mechanisms

  • United Millers Limited v Kenya Bureau of Standards and 5 Others
    [2021] eKLR

    Deference to statutory dispute resolution bodies; hierarchy of judicial system

  • Peter Odour Ngoge v Francis Ole Kaparo & others
    SC Petition No. 2 of 2012, [2012] eKLR

    Significance of respecting the hierarchy of the judicial system

  • 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 specialised disputes

  • Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank
    (1992) eKLR

    Representative suits by unincorporated bodies under Order 1 Rule 8

  • Kahindi Katana Mwango & Another v Cannon Assurance K. Ltd
    (2013) eKLR

    Written authority required for representative suits; absence renders suit defective

  • Railroad Commission of Texas v Pullman Co.
    312 U.S. 496 (1941)

    Origin of the Pullman abstention doctrine

  • England v Louisiana State Board of Medical Examiners
    375 U.S. 411 (1964)

    Abstention procedure - reserving federal issues

Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court); jurisdiction challenged under the Energy Act 2019 and doctrine of judicial abstention

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, "Wachu & another v Kenya Electricity Transmission Company Limited", Case Analysis (2023). Environment & Land Petition E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18348/eng@2023-06-22

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