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ELCDismissedNot stated in the judgment· [2024] KEELC 1210 (KLR)

Kerongo & another v Kisii County Government & 6 others (Petition E001 of 2023) [2024] KEELC 1210 (KLR)

Environment and Land Court of Kenya
7 March 2023
MSMunyao Sila
3,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear disputes over how public land was allocated to Kenya Power, rejecting the company's bid to move the case to energy regulators.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection by Kenya Power & Lighting Company Limited (4th respondent) in a petition filed by petitioners alleging that land parcel Central Kitutu/Mwamanwa/698, reserved by a resolution of the Gusii County Council on 23 December 1986 for the construction of Jogoo Market, was irregularly allocated to the 4th respondent by the Kisii County Government without due process, public participation or change of user. The petitioners sought a declaration that the allocation was unconstitutional and orders that the 4th respondent vacate and be restrained from the land. The 4th respondent objected that the Environment and Land Court lacked jurisdiction, contending the dispute fell under the Energy Act, 2019 and its complaint-resolution mechanisms, including EPRA and the Energy and Petroleum Tribunal, relying on the exhaustion-of-remedies doctrine and the Court of Appeal decision in Abidha Nicholus vs Attorney General & 7 Others. The 2nd respondent supported the objection. The court examined Sections 10, 11, 23, 25 and 36 of the Energy Act and held that EPRA and the Tribunal are confined to regulation of the energy and petroleum sector, licences and appeals from EPRA, and have no mandate over grants of public land. The dispute directly attacks the leasehold title issued to the 4th respondent and is therefore a title-to-land dispute within the court's jurisdiction under Article 162(2)(b) of the Constitution. The preliminary objection was dismissed as frivolous, with costs assessed at Kshs. 25,000/= payable by the 4th respondent within 14 days.

Key legal issues

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01

Jurisdiction - whether the dispute over allocation of public land to Kenya Power falls under the Energy Act, 2019 dispute resolution mechanisms

Holding

The preliminary objection fails; the dispute is one over title to land within the exclusive jurisdiction of the Environment and Land Court.

Reasoning

The court examined Sections 10, 11, 23, 25 and 36 of the Energy and Petroleum Act, 2019 and found that EPRA and the Tribunal deal with regulation of the energy sector, licences and appeals from EPRA decisions. The petition's core complaint is that the 4th respondent was irregularly granted land, attacking the leasehold title itself. Grant of land is distinct from a licence to distribute energy, so neither EPRA nor the Tribunal has mandate over it.

p. 8
02

Whether the authorities cited by the 4th respondent on exhaustion of alternative remedies were applicable

Holding

The authorities were irrelevant because they did not concern grant of leasehold titles.

Reasoning

Counsel for the 4th respondent relied on the Court of Appeal decision in Abidha Nicholus vs Attorney General & 7 Others and other authorities upholding EPRA and Tribunal jurisdiction. The court held those authorities irrelevant since none touched on the grant of a leasehold title, the actual issue before it.

p. 8

Legal principles established

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  • Where the core complaint is the irregular grant of public land, the dispute lies within the jurisdiction of the Environment and Land Court under Article 162(2)(b), not the Energy and Petroleum Tribunal
  • The mandate of EPRA is restricted to regulation of the energy and petroleum sector and does not extend to issuance of grants of public land

Court orders

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  1. 1.The preliminary objection is dismissed with costs to the petitioner
  2. 2.Costs assessed at Kshs. 25,000/= payable to the petitioner by the 4th respondent within the next 14 days
  3. 3.In default the petitioner is at liberty to proceed and execute for this sum

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c), 162(2)(b), 169(1)(d) and (2)
  • Energy Act, 2019Sections 3, 10, 11(e),(f),(i),(k)&(l), 23, 24, 36, 37(3)&(4), 40, 42, 80(7)&(8), 159(3), 160(3), 170, 224(2)(e), 25
  • Energy (Complaints and Disputes Resolution) Regulations, 2012Regulations 2, 4, 7, 9, 21
  • Fair Administrative Action Act, 2015Sections 9(2) and (3)
  • Environment and Land Court ActSection 13(2)

Cases cited (1)

  • Abidha Nicholus vs Attorney General & 7 Others
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(2) 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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Cite this brief

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Cite this brief

Caselaw, "Kerongo & another v Kisii County Government & 6 others (Petition E001 of 2023) [2024] KEELC 1210 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1210/eng@2024-03-07

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