Muigai v Kenya Power & Lighting Company (Environment & Land Case E039 of 2022) [2024] KEELC 3911 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear claims about transformers placed on private land, even when energy-sector complaints processes exist.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendant's Preliminary Objection is merited.
- 2.Who should bear the costs.
Key legal issues
#Whether the Energy Act's dispute resolution mechanisms (EPRA and the Energy and Petroleum Tribunal) oust the ELC's jurisdiction over a trespass claim arising from erection of a transformer on private land
The objection fails: the ELC has jurisdiction under Section 13 of the ELC Act and Article 162(2)(b), and the Supreme Court's nuanced approach to exhaustion permits the claim to proceed before the ELC.
The court accepted that the dispute stems from installation of a transformer on the plaintiff's land, squarely within the ELC's jurisdiction under Section 13(1) of the Environment and Land Court Act. Although the Energy Act establishes EPRA and the EPT as dispute resolution mechanisms, the Supreme Court in Abidha Nicholus acknowledged exceptions to exhaustion, holding that where alternative remedies are inadequate or where two options exist, a claim may be filed before the ELC. Applying that nuance, the court held nothing bars it from determining the claim, and dismissed the preliminary objection with costs.
Whether the preliminary objection was a proper pure point of law
The court applied the settled test that a preliminary objection must rest on a pure question of law on undisputed facts, but proceeded to determine the jurisdictional question on its merits.
Relying on the Supreme Court's decision in Kenya National Commission on Human Rights v Attorney General, the court restated that a preliminary objection may only be raised on a pure question of law where facts are not contested. The court then analysed the statutory framework of the Energy Act and the Fair Administrative Action Act against the constitutional jurisdiction of the ELC, concluding the objection was not merited because the claim is a land/trespass dispute within the ELC's mandate and the exhaustion doctrine admits exceptions.
Legal principles established
#- A preliminary objection must be founded on a pure point of law discernible on the face of the pleadings, without contest as to facts.
- Where a statute prescribes a dispute resolution procedure, that procedure should ordinarily be strictly followed, subject to exceptions.
- The availability of an alternative remedy does not necessarily bar a litigant from seeking relief, and the ELC may determine disputes relating to installation of electrical infrastructure on land notwithstanding the Energy Act mechanisms.
Court orders
#- 1.The Preliminary Objection dated 7th July 2022 is dismissed
- 2.Costs of the Preliminary Objection awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Defendant's prayer that the suit be dismissed for want of jurisdiction
The court found the ELC has jurisdiction and that, per the Supreme Court's nuanced approach to exhaustion, nothing bars it from determining the claim
Costs
The Preliminary Objection dated 7th July 2022 is dismissed with costs to the Plaintiff.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Section 13 (1) of the Environment and Land Act grants this court original and appellate the jurisdiction to hear and determine all disputes relating to environment and land in accordance with Article 162(2)(b) of the Constitution
where there is an alternative remedy, especially where Parliament has provided a statutory appeal procedure, then it is only in exceptional circumstances that the court can resort to any other process known to law.
the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief.
The Preliminary Objection dated 7th July 2022 is hereby dismissed with costs to the Plaintifi.
Issues in the judgment
#Judgment does not state the suit's case number, the parties' names, or the substantive relief sought in the plaint; the title of the suit is absent from the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muigai v Kenya Power & Lighting Company (Environment & Land Case E039 of 2022) [2024] KEELC 3911 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3911/eng@2024-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.