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ELCStruck OutEnvironment & Land Case E084 of 2022· [2023] KEELC 19834 (KLR)

Thaathini Development Company Limited v Kenya Electricity Transmission Company Limited

Environment and Land Court
20 September 2023
SKS. M. Kibunja
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Thaathini Development Company Limited sued Kenya Electricity Transmission Company Limited by plaint dated 29 July 2022, seeking a permanent injunction against the erection of high voltage electricity transmission lines on its parcels of land, an order to pull down the grid, damages for trespass, compensation for forceful detainer and costs, supported by a notice of motion for interlocutory and mandatory injunctions. The defendant filed a preliminary objection on five grounds, principally that the court lacked original jurisdiction, the dispute being reserved to EPRA and the Energy and Petroleum Tribunal under the Energy Act 2019. S. M. Kibunja, J framed three issues: the court's original jurisdiction, the plaintiff's locus standi, and whether the motion was a non-starter for defective annexures. The court held that only the jurisdictional issue was a pure point of law suitable for a preliminary objection; the other two required evidence. On jurisdiction, the court found that the plaintiff's complaints fell squarely within the Energy Act 2019 dispute resolution framework: section 3 makes the Act prevail on transmission matters, section 36(3) confers original civil jurisdiction on the Tribunal over licensee-third party disputes, and section 36(5) empowers it to grant injunctions and damages. Applying the doctrine of exhaustion and the principle that a court without jurisdiction must down its tools, the court upheld the preliminary objection, struck out the suit and application, and awarded costs to the defendant under section 27 of the Civil Procedure Act. The issues of locus standi and defective annexures were left unpronounced.

Key legal issues

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01

Whether the ELC has original jurisdiction over a dispute concerning erection of high voltage transmission lines on private land

Holding

The court lacks original jurisdiction; the dispute falls within the Energy Act 2019 dispute resolution framework, starting with EPRA and the Energy and Petroleum Tribunal

Reasoning

Section 3 of the Energy Act 2019 makes it prevail on matters of transmission and works; section 36(3) gives the Tribunal original civil jurisdiction over licensee-third party disputes, and section 36(5) allows it to grant equitable reliefs including injunctions and damages, covering the reliefs sought here.

p. 4
02

Whether the objections on locus standi and defective annexures could be determined by way of preliminary objection

Holding

No - they are not pure points of law as they require evidence

Reasoning

Ownership of the suit parcels is in contention and would require evidence through affidavits with title documents or oral testimony; defects in annexures likewise require evidentiary material. Such issues are best dealt with by a notice of motion with replying affidavits, not a preliminary objection.

p. 2
03

Whether the doctrine of exhaustion applies

Holding

Yes - the plaintiff should have first pursued the statutory dispute resolution mechanism

Reasoning

Relying on Geoffrey Muthinja Kabiru, Speaker of National Assembly v Karume and Kibos Distillers, the court held that where a clear statutory procedure exists it must be strictly followed, and courts are fora of last resort; the ELC cannot usurp the original jurisdiction of other competent organs.

p. 6

Legal principles established

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  • Where a statute provides a specialised dispute resolution mechanism, that mechanism must be exhausted before invoking the court's jurisdiction
  • A court without jurisdiction must down its tools and cannot pronounce on other issues
  • The Energy and Petroleum Tribunal has original civil jurisdiction over disputes between a licensee and a third party in energy matters

Court orders

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  1. 1.The defendant's preliminary objection on the ground of the court lacking original jurisdiction is upheld
  2. 2.The plaintiff's suit and application are struck out with costs to the defendant

Authorities

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Legislation

  • Energy Actsections 3, 25, 36(1), (3), (4), (5), 37(3)
  • Environment and Land Court Actsection 13
  • Energy (Complaints and Dispute Resolution) RegulationsRegulation 4(a)
  • Oaths and Statutory Declarations RulesRule 9
  • Civil Procedure Actsection 27
  • Constitution of KenyaArticles 26, 27, 28, 35, 43, 46, 47, 48, 50, 162(2)(b), 165
  • Environmental Management and Co-ordination Actsection 130
  • Physical Planning Actsections 15, 19, 38
  • Physical Planning and Land Use Actnot specified

Cases cited (12)

  • Mukisa Biscuits Manufacturing Ltd vs West End Distributors
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Owners of the Motor Vessel "Lillian S" versus Caltex (Kenya) Limited
    [1989] eKLR; [1989] KLR 1

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

  • County Government of Migori versus I N B Management IT Consulting Ltd
    [2019] eKLR

    Jurisdiction must be determined first

  • Phoenix of E.A Assurance Company Ltd versus S. M. Thiga t/a Newspaper Service
    [2019] eKLR

    Jurisdiction as a preliminary issue

  • Samuel Kamau Macharia & Another versus Kenya Commercial Bank Ltd & 2 Others
    [2012] eKLR

    Jurisdiction cannot be conferred by judicial craft or pleadings

  • Geoffrey Muthiga Kabiru & 2 Others Vs Samuel Munga Henry & 1756 others
    (2015) eKLR

    Exhaustion of alternative dispute resolution mechanisms

  • C O D & another v Nairobi City Water & Sewerage Co. Ltd
    [2015] eKLR

    Constitutional petitions cannot be used to resolve contractual disputes

  • International Centre for Policy and Conflict and 5 Others –vs- The Hon. Attorney-General & 4 Others
    [2013] eKLR

    Judicial restraint where statutory bodies can resolve a dispute

  • Issa Ahmed & 15 others v Mohamed Al-Sawae
    [2021] eKLR

    Exhaustion of mechanisms under the Physical Planning and Land Use Act

  • Kibos Distillers Ltd & 4 others vs Benson Ambuti Adega & 3 others
    [2020] eKLR

    ELC cannot usurp original jurisdiction of other competent organs

  • Benson Ambuti Adega & 2 Others versus Kibos Distillers Limited & 5 Others
    [2020] eKLR

    Reserving issues outside a tribunal's jurisdiction pending its decision

  • Speaker of National Assembly versus James Njenga Karume
    [1992] KLR 21

    Strict adherence to prescribed procedures for redress

Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act (jurisdiction contested under the Energy Act 2019)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Thaathini Development Company Limited v Kenya Electricity Transmission Company Limited", Case Analysis (2023). Environment & Land Case E084 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19834/eng@2023-09-20

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