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ELCOtherEnvironment & Land Case (suit over Plot No. Kwale/Mwavumbo/54 and Kwale/Mwavumbo/176)· [2024] KEELC 4144 (KLR)

Manjewa Station Limited v Kenya Electricity Transmission Co Ltd (Environment & Land Case 127 of 2021) [2024] KEELC 4144 (KLR)

Environment and Land Court
26 April 2024
2,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Landowners disputing electricity transmission compensation in Kenya must first use the Energy Act's complaint process before going to the Environment and Land Court.

What this practically means

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Executive summary

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This ruling by A.E Dena J of the Environment and Land Court determines a Notice of Preliminary Objection filed by the Defendant, Kenya Electricity Transmission Company Limited, in a suit in which the Plaintiff, the registered proprietor of Plot No. Kwale/Mwavumbo/54 and Kwale/Mwavumbo/176, claims compensation of Kshs 12 million per acre for 29.92 acres, alleging that the Defendant entered the parcels in July 2012 and erected transmission line towers without authority. The Defendant objected that the Plaintiff had not exhausted the alternative dispute resolution mechanisms under the Energy Act 2019 and the Energy (Complaints and Dispute Resolution) Regulations 2012, invoking section 9(2) of the Fair Administrative Action Act. Applying the Mukisa Biscuit threshold and the Owners of the Motor Vessel 'Lillian S' principle on jurisdiction, the court found the objection raised pure points of law. Reviewing sections 3, 10, 11, 23, 24, 36, 40 and 224(2)(e) of the Energy Act and Regulations 2, 4, 7 and 9, the court held that the dispute concerns wayleaves for energy transmission and that a complete statutory mechanism exists - complaint to EPRA, appeal to the Energy and Petroleum Tribunal, and appeal to the High Court. Relying on the Supreme Court's decisions in Abidha Nicholus and NGOs Co-ordination Board and Speaker v Karume, the court held the suit was filed prematurely. However, declining to strike out the suit, the court held the ELC's jurisdiction under Article 162(2)(b) is suspended, not ousted, and stayed the proceedings pending exhaustion of the statutory dispute resolution mechanism. The partly-heard status of the matter is not a special circumstance. No express costs order was made.

Key legal issues

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01

Whether the disputes over wayleaves for transmission of electrical energy fall within the Energy Act dispute resolution framework

Holding

The Plaintiff's claim for compensation for the Defendant's entry and erection of transmission towers concerns wayleaves and falls under the Energy Act 2019 and the Energy (Complaints and Dispute Resolution) Regulations 2012

Reasoning

The court examined sections 3, 10, 11, 23, 24, 36, 40 and 224(2)(e) of the Energy Act 2019 and Regulations 2, 4, 7 and 9 of the 2012 Regulations, and found they establish a complete alternative dispute resolution mechanism covering wayleaves and easements relating to transmission of electrical energy, which squarely captures the claim for compensation over the transmission line towers.

p. 3
02

Whether the doctrine of exhaustion required the Plaintiff to pursue the statutory mechanism before filing suit

Holding

Yes; the suit was filed prematurely and should be stayed pending exhaustion of the statutory dispute resolution mechanisms

Reasoning

Relying on the Supreme Court's decisions in Abidha Nicholus and NGOs Co-ordination Board, the court held that where Parliament has provided a statutory dispute resolution procedure, it must be strictly followed and only exceptional circumstances justify departure. Failed negotiations and the partly-heard status of the matter are not exceptional circumstances.

p. 5
03

Whether the Plaintiff's access to justice rights under Articles 48 and 24 of the Constitution are violated by the statutory mechanism

Holding

No; the Plaintiff is not locked out of justice since a right of appeal to the court remains after exhausting the statutory process

Reasoning

The court reasoned that the Energy Act does not oust the court's jurisdiction but requires the statutory forums to be given the first opportunity, consistent with Article 159(2)(c) on alternative dispute resolution. The Plaintiff retains an opportunity to approach the court on appeal after the mechanism is exhausted.

p. 5

Legal principles established

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  • Where legislation establishes an alternative dispute resolution mechanism, that mechanism must be exhausted before resort to the court, absent exceptional circumstances
  • Exhaustion of statutory remedies suspends, but does not oust, the residual and original jurisdiction of the Environment and Land Court under Article 162(2)(b)
  • A partly-heard matter is not a special circumstance justifying departure from a statutory dispute resolution procedure

Court orders

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  1. 1.The preliminary objection is merited to the extent that the alternative dispute resolution mechanisms are available and should be exhausted
  2. 2.These proceedings shall be stayed pending the exhaustion of the dispute resolution mechanism stipulated under the Energy Act
  3. 3.The suit was not struck out; the court may pick up the partly-heard matter where it left off should the Plaintiff remain aggrieved

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)(b), 159(2)(c), 47, 48, 24, 259
  • Energy Act2019 - Sections 3(1), 10, 11(e, f, i, k & l), 23, 24, 25, 36(1) and (5), 37(3), 40, 224(2)(e)
  • Energy (Complaints and Dispute Resolution) Regulations2012 - Regulations 2, 4(a), 5, 7 and 9
  • Fair Administrative Action Act2015 - Section 9(2)
  • Environment and Land Court ActSection 13(1) and (2)
  • Civil Procedure ActSection 11

Cases cited (8)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Thaathini Development Company Limited v Kenya Electricity Transmission Company Limited
    (Environment & Land Case E084 of 2022) [2023] KEELC 19834 (KLR) (20 September 2023) (Ruling)
  • Abidha Nicholus v The Attorney General & 8 Others
    Petition No.007 of 2023
  • NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae)
    (Petition 16 of 2019) [2023] KESC 17 (KLR) (24 February 2023)
  • Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others
    SC Petition No 3 of 2016, [2019] eKLR
  • R v National Environmental Management Authority
    CA No 84 of 2010; [2011] eKLR
  • Speaker of National Assembly v James Njenga Karume
    [1992] KLR 21
Jurisdiction invoked
Article 162(2)(b) of the Constitution read together with Section 13(1) and (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, "Manjewa Station Limited v Kenya Electricity Transmission Co Ltd (Environment & Land Case 127 of 2021) [2024] KEELC 4144 (KLR)", Case Analysis (2024). Environment & Land Case (suit over Plot No. Kwale/Mwavumbo/54 and Kwale/Mwavumbo/176). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4144/eng@2024-04-26

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