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ELCDismissedEnvironment & Land Case E307 of 2021· [2023] KEELC 21406 (KLR)

Cape Suppliers Limited v Kenya Power & Lighting Company PLC

Environment and Land Court
6 November 2023
JMJA Mogeni
4,796 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused Kenya Power's bid to reopen a jurisdiction ruling, confirming that review cannot be used as a disguised appeal.

What this practically means

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Executive summary

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The Defendant, Kenya Power & Lighting Company PLC, applied under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules for review of the Court's ruling of 15/03/2022, which had dismissed its preliminary objection challenging the Court's jurisdiction. The Defendant argued that a subsequent Court of Appeal decision (Nicholus v Attorney General & 14 others) affirming the three-tiered dispute resolution mechanism under the Energy Act 2019 constituted 'any other sufficient reason' for review, since the Plaintiff's trespass claim over high voltage power lines on L.R. No. 36/IV/14 (20A), Eastleigh, should first go to the Energy and Petroleum Regulatory Authority and Tribunal. The Plaintiff opposed, arguing the application was res judicata, that the Energy Act bodies lack jurisdiction over trespass, that the ELC has unlimited original jurisdiction under Article 162(2)(b), and that the application was a late attempt to scuttle a part-heard trial. Mogeni J restated the settled principles of review: it cannot be an appeal in disguise; an error apparent on the record must be self-evident; and 'sufficient reason' must be analogous to the other statutory grounds. The court held that the applicant was merely faulting the court's decision - a matter for appeal, not review - and that misconstruing a statute cannot ground review. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether a binding Court of Appeal decision on jurisdiction constitutes 'sufficient reason' for review

Holding

No - the applicant is merely faulting the court's decision, which is a ground for appeal, not review

Reasoning

The applicant contended that a subsequent Court of Appeal decision affirming the Energy Act's three-tier dispute resolution mechanism constituted sufficient reason to review the ruling upholding the ELC's jurisdiction. The court held that the applicant's real complaint is that the court proceeded on an incorrect exposition of law and reached an erroneous conclusion. Such dissatisfaction and misconstruction of a statute cannot ground review; the remedy is appeal. Granting review would amount to the court sitting on appeal over its own decision, which is prohibited.

p. 7
02

Whether there was an error apparent on the face of the record

Holding

None pleaded; the ruling contained no self-evident error

Reasoning

Relying on Muyodi v ICDC and related authorities, the court restated that an error apparent on the face of the record must be manifest and require no extraneous matter or elaborate argument to establish. Mere dissatisfaction with a decision, or the possibility that a different view could have been taken, does not qualify. Nothing was pleaded by the applicant denoting an apparent error in the ruling of 15/03/2022.

p. 7
03

Whether there was discovery of new and important matter or evidence

Holding

No new evidence was relied upon; the application was based solely on the subsequent Court of Appeal authority

Reasoning

The court noted the settled principles that discovery of new and important matter requires strict proof, and that not every new fact qualifies for interference with a judgment. The application did not rest on new evidence but on the Court of Appeal's decision in Nicholus v Attorney General, which the court treated as an argument thought of after the decision, not a proper review ground.

p. 8

Legal principles established

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  • Review cannot be used as an appeal in disguise; misconstruing a statute or reaching an erroneous conclusion is not a ground for review
  • An error apparent on the face of the record must be self-evident and not require long debate or reasoning to detect
  • 'Any other sufficient reason' for review must be analogous to the other two grounds in Order 45 Rule 1

Court orders

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  1. 1.The Defendant's application dated 14/07/2023 is dismissed with costs to the Plaintiff/Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 50(1), 159(2), 162, 164(3), 169(1)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 5, 80
  • Civil Procedure Rules 2010Order 42 Rule 6, Order 45 Rule 1
  • Environment and Land Court ActSections 3, 13
  • Energy Act 2019Sections 3(1), 10, 11(e),(f),(i),(k),(l), 23, 24, 36, 40, 42, 224(2)(e)
  • Energy (Complaints and Disputes Resolution) Regulations 2012Regulations 2, 4, 9
  • Fair Administrative Action Act 2015Sections 9(2), 9(3)
  • Trespass Act Cap 294Section 3

Cases cited (12)

  • Kennedy Mwaura Kibebe & 3 others v Annie Wanjiku Kibeh & 3 others
    [2021] eKLR

    Hierarchy of courts and doctrine of precedent binding the ELC

  • Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Marega (deceased) v Kariuki Marega & Another
    (2018) eKLR

    Discovery of new and important matter or evidence requires strict proof

  • Rose Kaiza v Angelo Mpanju Kaiza
    (2009) eKLR

    Not every new fact will qualify for interference with a judgment

  • Muyodi Vs Industrial and Commercial Development Corporation & Another
    EA LR [2006] 1 EA 213

    Error apparent on the face of the record must be manifest and self-evident; dissatisfaction is a matter for appeal

  • Muhamed Mungai Vs Ford Kenya Election, and Nominations Board and Another
    Nairobi High Court Judicial Review Misc. Application No. 53 of 2013

    Cited for the Muyodi principle on error apparent on the record

  • Attorney General & O'rs v Boniface Byanyima
    HCMA No.1789 of 2000

    Meaning of 'mistake or error apparent on the face of record' - an evident error requiring no extraneous matter

  • Levi Outa v Uganda Transport Company
    [1995] HCB 340

    Definition of error apparent on the face of the record

  • Sadar Mohamed vs Charan Signh and Another
    [1963] EA 557

    'Any other sufficient reason' means grounds analogous to the other two review grounds

  • Tokesi Mambili and others vs Simion Litsanga
    [2004] eKLR

    Requirements for review; sufficient reason is a matter for the court's discretion

  • Evan Bwire vs Andrew Nginda
    Civil Appeal No. 103 of 2000, Kisumu; [2000] LLR 8340

    Review allowed only on very strong grounds, particularly where it would reopen a case afresh

  • Mumby's Food Products Limited & 2 Others vs. Co-Operative Merchant Bank Limited
    Civil Appeal No. 270 of 2002

    Review only to correct self-evident error or omission; misconstruing a statute is not a ground for review

  • Mahinda vs. Kenya Power & Lighting Co. Ltd
    [2005] 2 KLR 418

    Courts refuse invitations to review, vary or rescind their own decisions except to give effect to their intention

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Cape Suppliers Limited v Kenya Power & Lighting Company PLC", Case Analysis (2023). Environment & Land Case E307 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21406/eng@2023-11-06

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