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ELCStruck Out(Environment & Land Case, Machakos - not stated in judgment)· [2024] KEELC 3644 (KLR)

Itabari v Kenya Electricity Transmission Company Limited (Environment & Land Case E077 of 2022) [2024] KEELC 3644 (KLR)

Environment and Land Court
7 May 2024
1,914 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Defendant filed a Notice of Preliminary Objection dated 5th October 2023 contending that the Environment and Land Court lacked jurisdiction over the Plaintiff's trespass suit, arguing the dispute fell under sections 3(1) and 224(2)(e) of the Energy Act 2019 and Regulations 4(a) and 7 of the Energy (Complaints and Disputes Resolution) Regulations 2012, and relying on Abidha Nicholus. The Plaintiff, who sued over an alleged unauthorised entry onto Konza North/Konza North Block 2 (Malili)/3, sought declaratory and injunctive relief and damages for trespass. This was the Defendant's second preliminary objection; on 20th September 2023 the court had disallowed an earlier objection and directed it to file a defence, which it never did. The court applied the Mukisa Biscuit test that a preliminary objection must be a pure point of law, and held that the trespass claim fell squarely within its jurisdiction under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. Juxtaposing the Energy Act provisions against the Plaint, the court found trespass is not among the disputable areas listed in Regulation 4(a). It distinguished Abidha Nicholus, which concerned operations on neighbouring land with environmental impact rather than trespass on private property. Finding the objection premature and the Defendant engaged in delaying tactics contrary to Article 159's overriding objective, the court struck out the preliminary objection with costs to the Plaintiff on 7th May 2024.

Key legal issues

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01

Whether the Energy Act 2019 and the Energy (Complaints and Disputes Resolution) Regulations 2012 oust the ELC's jurisdiction over a trespass claim

Holding

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

Reasoning

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.

p. 4
02

Whether Abidha Nicholus compelled dismissal of the suit

Holding

No; that decision was distinguished because it dealt with operations on neighbouring land touching environmental impact, not trespass on private property

Reasoning

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.

p. 4
03

Whether the objection was premature given the Defendant's failure to file a defence

Holding

Yes; the Defendant defied a court order to file a defence and was engaged in delaying tactics

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Notice of Preliminary Objection dated 5th October 2023 struck out
  2. 2.Costs of the Preliminary Objection awarded to the Plaintiff

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b); Article 159
  • Environment and Land Court ActSection 13(1), 13(2)(c) & (d)
  • Energy Act 2019Sections 3(1), 224(2)(e), 37(3)
  • Energy (Complaints and Disputes Resolution) Regulations 2012Regulations 4(a) and 7(1)

Cases cited (8)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • The Owners of Motor Vessel "Lilian S" vs Caltex Oil Kenya Ltd
    [1989] KLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others
    Application No. 2 of 2011
  • Abidha Nicholus v Attorney General & 7 Others; National Environmental Complaints Committee (NECC), NEMA, Siaya County, KPLC & Others
    Kisumu Civil Appeal No. 42 of 2021 [2023] eKLR
  • Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others
    Civil Application No. 36 of 2014
  • Autar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004
  • Kisaka v Muyia & 3 Others
    (Environment & Land Case E009 of 2022) KEELC 18345 (KLR)
  • George Waweru Njuguna v Pauline Chesang Gitau Kamuyu
    (2017) eKLR
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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Cite this brief

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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.