Itabari v Kenya Electricity Transmission Company Limited (Environment & Land Case E077 of 2022) [2024] KEELC 3644 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it — not the Energy Act regime — hears trespass claims against Kenya Power, striking down a jurisdictional challenge with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Energy Act 2019 and the Energy (Complaints and Disputes Resolution) Regulations 2012 oust the ELC's jurisdiction over a trespass claim
They do not; a claim of trespass on private property falls within the ELC's jurisdiction under Article 162(2)(b) and section 13 of the ELC Act
The court juxtaposed sections 3(1) and 224(2)(e) of the Energy Act and Regulations 4(a) and 7 against the Plaint and found no clear connection between alleged trespass and disputes arising from Energy Act operations. Regulation 4(a) lists disputable areas (billing, wayleaves, easements etc.) but not trespass. The Plaintiff alleged entry without consent, which cannot constitute a dispute under the Energy Act.
Whether Abidha Nicholus compelled dismissal of the suit
No; that decision was distinguished because it dealt with operations on neighbouring land touching environmental impact, not trespass on private property
The court noted the Defendant's heavy reliance on Abidha Nicholus but found a clear distinction: the instant suit concerns trespass on private property, while the cited decision concerned operations on a neighbouring land with environmental impact. Though the Energy Act provisions could apply given the parties, the prayers sought and subject activities differ.
Whether the objection was premature given the Defendant's failure to file a defence
Yes; the Defendant defied a court order to file a defence and was engaged in delaying tactics
This was the second preliminary objection by the Defendant. The court had on 20th September 2023 directed it to file a defence within 21 days; instead it filed a fresh objection. The court held that absent a defence expressly denying jurisdiction the suit remains unopposed, and invoked Article 159's overriding objective and expeditious disposition.
Legal principles established
#- A preliminary objection must be a pure point of law; it cannot be raised where facts have to be ascertained or judicial discretion exercised
- The ELC's jurisdiction over trespass claims stems from Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
- Trespass is not among the disputable areas listed under Regulation 4(a) of the Energy (Complaints and Disputes Resolution) Regulations 2012
Court orders
#- 1.Notice of Preliminary Objection dated 5th October 2023 struck out
- 2.Costs of the Preliminary Objection awarded to the Plaintiff
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Itabari v Kenya Electricity Transmission Company Limited (Environment & Land Case E077 of 2022) [2024] KEELC 3644 (KLR)", Case Analysis (2024). (Environment & Land Case, Machakos - not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3644/eng@2024-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.