Charo Gona & 56 others v Kenya Power & Lighting Company
The bottom line
#Landowners who sued Kenya Power in the wrong court lost their case entirely because Kenyan law requires electricity disputes to go to the Energy and Petroleum Tribunal first.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was a proper preliminary objection in law
It was a pure point of law going to the root of the matter, satisfying the Mukisa Biscuit threshold
The court applied the classic Mukisa Biscuit definition: a preliminary objection must be a pure point of law arising from the pleadings, capable of disposing of the suit, argued on the assumption that all facts pleaded by the opposite party are correct. The question whether the ELC had jurisdiction given the Energy Act scheme was such a pure point of law and could dispose of the case.
Whether the ELC had jurisdiction over a wayleave/electricity supply dispute between the Plaintiffs and KPLC
It did not; the dispute falls under the Energy Act, 2019 and must go to the Energy and Petroleum Tribunal (or the Regulatory Authority)
The dispute concerned development of energy infrastructure (electricity supply lines/wayleaves) on private land. Section 36 of the Energy Act, 2019 vests the Tribunal with original civil jurisdiction over disputes between a licensee and a third party, and section 36(5) empowers it to grant equitable reliefs including injunctions. KPLC is a licensee under the Act. The Plaintiffs bypassed the statutory mechanism, contrary to the exhaustion doctrine and section 9 of the Fair Administrative Action Act.
Whether the Defendant's marking of houses with 'X' constituted administrative action engaging the exhaustion requirement
Yes; the marking and proposed wayleave construction was an administrative decision affecting the Plaintiffs' rights
Relying on section 2 of the Fair Administrative Action Act, the court held that the Defendant's act of wanting to construct wayleaves and the 'X' marks made by its workers was a decision affecting the Plaintiffs' legal rights, hence administrative action. Section 9(2) and (3) of that Act bars judicial review unless statutory remedies are first exhausted, reinforcing the lack of jurisdiction.
Costs of the preliminary objection
Costs awarded to the successful Defendant, costs following the event under section 27(1) of the Civil Procedure Act
The court applied the principle that costs follow the event, compensating the successful party rather than penalising the losing party. The Plaintiffs, aware of the statutory mechanisms, prematurely dragged the Defendant to court, which expended considerable resources; fairness dictated costs to the Defendant.
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
- The Energy and Petroleum Tribunal has original civil jurisdiction over disputes between a licensee and a third party and may grant equitable reliefs
Court orders
#- 1.The Preliminary Objection dated 29th September, 2022 is found to have merit, is upheld and the suit is struck out; the matter stands closed
- 2.This dispute ought to have been referred to the Energy and Petroleum Tribunal in accordance with the Act
- 3.The costs of the preliminary objection and the suit are awarded to the Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution; the court considered whether the Energy Act, 2019 ousts that jurisdiction
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). Civil Suit E064 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20214/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.