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ELCStruck OutCivil Suit E064 of 2022· [2023] KEELC 20214 (KLR)

Charo Gona & 56 others v Kenya Power & Lighting Company

Environment and Land Court of Kenya
21 September 2023
13,412 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~54 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) is the final determination of the Defendant's preliminary objection dated 29 September 2022, reconsidered after the court on 22 June 2023 allowed, ex parte, the Plaintiffs' application to set aside the ruling of 28 March 2023 on the ground that their written submissions filed on 30 November 2022 had inadvertently not been considered. The 57 Plaintiffs, residents of Jomvu Brightstar area, Mombasa, sued Kenya Power & Lighting Company after its agents marked their houses with 'X' on the allegation that the structures lay within a wayleave, seeking declarations, injunctions and a Government Surveyor's report. KPLC objected that the ELC lacked jurisdiction, the dispute falling under the Energy Act, 2019 - the Energy and Petroleum Regulatory Authority and the Energy and Petroleum Tribunal being the primary fora. The court framed three issues: whether the objection met the Mukisa Biscuit threshold; whether the court had jurisdiction considering the exhaustion doctrine; and costs. Holding the objection a pure point of law, the court found that the dispute concerned energy infrastructure on private land; that KPLC is a licensee under section 2 of the Energy Act; that section 36(3) vests original civil jurisdiction over licensee-third-party disputes in the Tribunal, which under section 36(5) can grant equitable reliefs including injunctions; and that the Defendant's conduct amounted to administrative action engaging section 9 of the Fair Administrative Action Act. 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 a proper preliminary objection in law

Holding

It was a pure point of law going to the root of the matter, satisfying the Mukisa Biscuit threshold

Reasoning

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.

p. 21
02

Whether the ELC had jurisdiction over a wayleave/electricity supply dispute between the Plaintiffs and KPLC

Holding

It did not; the dispute falls under the Energy Act, 2019 and must go to the Energy and Petroleum Tribunal (or the Regulatory Authority)

Reasoning

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.

p. 24
03

Whether the Defendant's marking of houses with 'X' constituted administrative action engaging the exhaustion requirement

Holding

Yes; the marking and proposed wayleave construction was an administrative decision affecting the Plaintiffs' rights

Reasoning

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.

p. 25
04

Costs of the preliminary objection

Holding

Costs awarded to the successful Defendant, costs following the event under section 27(1) of the Civil Procedure Act

Reasoning

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.

p. 26

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
  • 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

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  1. 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. 2.This dispute ought to have been referred to the Energy and Petroleum Tribunal in accordance with the Act
  3. 3.The costs of the preliminary objection and the suit are awarded to the Defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 159(2)(c), 162(2), 169(1)(d) and (2), 22(3), 258, 260, 163(7)
  • Energy Act, 2019Sections 2, 3(1), 9, 10, 11(e),(f),(i),(k),(l), 12, 13, 23, 24, 25, 26, 36, 37, 40, 42, 46, 167(1)(m), 170, 224(2)(e); Third Schedule
  • Energy (Complaints and Disputes Resolution) Regulations, 2012Regulations 2, 4, 7 and 9
  • Energy Act, 2006 (repealed)Sections 61(3), 63, 108, 110; paragraph 12(4)
  • Fair Administrative Action Act, 2015Sections 2, 9(1)-(5)
  • Civil Procedure Act, Cap 21Sections 5, 18, 27(1)
  • Judicature ActSection 3
  • Land Registration Actexhaustion of remedy thereunder (as cited in Cyrus Komo Njoroge)
  • Energy Tribunal Rules, 2008procedures before the Energy and Petroleum Tribunal

Cases cited (45)

  • 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

    Statutory dispute-resolution bodies must be given first opportunity over disputes disguised to attract superior courts

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

    Courts must exercise restraint and defer to statutory dispute-resolution bodies established for specific disputes

  • 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

    Parties cannot confer jurisdiction by consent; an incompetent suit cannot be transferred

  • 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 [E.A] Limited
    [2017] eKLR

    Jurisdiction can be raised at any stage of proceedings

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

    Jurisdiction is everything; a court must down its tools once it finds it lacks jurisdiction

  • 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

    Striking out a petition for bypassing a statutory adjudication remedy

  • 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

    A construction denying a tribunal power to make orders would result in absurdity

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

    The Energy Act prevails over other Acts but not the Constitution; exhaustion under section 9 FAA Act

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

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

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

    Statutory dispute-resolution procedures must be strictly followed; suit dismissed

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

    The word 'shall' in section 9 FAA Act is mandatory

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

    Article 159 obliges the Judiciary to promote alternative dispute resolution including tribunals

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

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

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

    Statutory functionaries are best equipped to decide; courts should intervene only on demonstrated grounds

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

    Exhaustion doctrine: courts are fora of last resort, not first port of call

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

    Once a dispute-resolution procedure is provided, the court has no business extending its tentacles thereto

  • Thomas Schering v Nereah Michael Said & Others
    [2019] eKLR

    Parliament intended energy disputes to be handled by a specialised body

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

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

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

    Preliminary objection upheld; court had no jurisdiction and suit struck out

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

    Energy matters should be heard before the Energy Regulatory Commission; appeal dismissed

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

    First port of call for electricity disputes 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; statutory scheme must be followed

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

    Specific procedures for redress of grievances must be strictly followed

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

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

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

    Wayleave dispute over private land to be referred to the Energy and Petroleum Tribunal; suit struck out

  • 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 supply disputes 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 is that costs follow the event

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

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

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

    Costs awarded to the successful party unless there is good ground not to

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

    A court cannot adjudicate on matters in which it lacks jurisdiction; jurisdiction derives from Constitution or statute

  • Charles Onchari Ogoti v Safaricom Ltd & anor
    [2020] eKLR

    Discussion of the nature and scope of preliminary objections, citing Mukisa Biscuit

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • David Nyekorach Matsanga & Another v Philip Waki & 3 Others
    [2017] eKLR

    Mukisa Biscuit as the watershed on preliminary objections

  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR

    A preliminary objection raises a pure point of law on assumed pleaded facts

  • Hassan Ali Joho & another v Suleiman Said Shabal & 2 Others
    SC Petition No. 10 of 2013 [2014] eKLR

    A preliminary objection consists of a point of law pleaded or arising by clear implication from pleadings

  • Artar Singh Bhamra & Anor v Oriental Commercial Bank
    Civil Suit No. 53 of 2004, High Court Kisumu

    A preliminary objection must stem from the pleadings and be based on pure points of law

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

    Where an alternative statutory remedy exists, it should be pursued first

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

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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). 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.