Vescon Properties Limited v Kenya Power and Lighting Company Limited (Environment & Land Petition 15 of 2022) [2024] KEELC 206 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you can sue a utility for trespass on your land without first going through energy regulators.
What this practically means
#Executive summary
#Key legal issues
#Whether the doctrine of exhaustion obliged the Petitioner to first go to EPRA and the Energy and Petroleum Tribunal before approaching the ELC
The Preliminary Objection was dismissed; the petition is properly before the ELC because the pleaded Article 40 property violation lies within this Court's jurisdiction, even though wayleave issues could be addressed under the Energy Act.
The Court surveyed the Kibos litigation, United Millers and Abidha Nicholus, noting the Supreme Court's guidance that in a multifaceted claim a court must address each issue within its jurisdiction. It distinguished the wayleave question (an Energy Act matter) from the pleaded constitutional violation of the right to property under Article 40, which only the ELC can determine. Since the question at trial would be whether the Petitioner was compensated for the deprivation, the constitutional claim anchored the petition in the ELC.
The primacy and immediacy of jurisdiction
Jurisdiction is everything and must be determined at once; a court without jurisdiction holds proceedings in abeyance or remits the matter to the appropriate forum.
Relying on Owners of the Motor Vessel 'Lillian S', the Court reaffirmed that a jurisdictional question must be raised and decided at the earliest opportunity on the material before it, and a court that lacks jurisdiction must down its tools or hold proceedings in abeyance pending primary adjudication by the relevant forum.
Legal principles established
#- Where the issue of wayleaves falls under the Energy Act but the claim of violation of the right to property under Article 40 is pleaded, the petition lies before the ELC.
- Jurisdiction must be addressed immediately once raised; a court without jurisdiction must down its tools.
Court orders
#- 1.The Respondent's Preliminary Objection is dismissed
- 2.Costs of the Preliminary Objection awarded to the Petitioner
- Jurisdiction invoked
- Articles 3, 165(3)(a) and 162(2) of the Constitution and Sections 4 and 13 of the Environment and Land Court Act, 2012 (as urged by the Petitioner); the Court proceeded on its own jurisdiction over the Article 40 property claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vescon Properties Limited v Kenya Power and Lighting Company Limited (Environment & Land Petition 15 of 2022) [2024] KEELC 206 (KLR)", Case Analysis (2024). Not stated in the judgment (Petition dated 24th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/206/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.