Shelly Engineering Works Limited v Kenya Power and Lighting Company Plc (Environment & Land Case E062 of 2023) [2024] KEELC 4231 (KLR)
The bottom line
#A Kenyan court struck out an electricity dispute suit because the owner never complained to EPRA first — statutory procedures must be followed.
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 preliminary objection raises a pure point of law that if decided can determine the suit.
- 2.What orders commend themselves to be issued by the court.
- 3.Who pays the costs?
Key legal issues
#Whether the preliminary objection raises a pure point of law on jurisdiction
The objection raises a pure point of law: the plaintiff failed to exhaust statutory dispute resolution forums (EPRA and the Energy and Petroleum Tribunal) before filing suit, so the court lacks jurisdiction.
Applying Mukisa Biscuit on the nature of preliminary objections and Owners of Motor Vessel 'Lillian S' on jurisdiction, the court held that the Energy Act and its Regulations prescribe a tiered dispute resolution mechanism - complaint to EPRA, appeal to the Energy and Petroleum Tribunal, then the High Court. The dispute concerned trespass through erection of electricity poles and powerlines, squarely within that mechanism. Following Speaker of National Assembly v Karume and its own KETRACO ruling, the statutory procedure had to be strictly followed; the suit was premature and the court must down its tools.
Costs
The defendant, having succeeded on the preliminary objection, is awarded costs.
Section 27 of the Civil Procedure Act provides that costs follow the events unless the court directs otherwise for good reasons. Since the preliminary objection succeeded and the suit was struck out, the plaintiff must pay the defendant's costs.
Legal principles established
#- Where a statute provides a clear procedure for redress, that procedure must be strictly followed before resort to the court.
- A court without jurisdiction must down its tools immediately.
- EPRA has original jurisdiction over disputes such as trespass arising from connection of electricity, requiring prior exhaustion of statutory dispute resolution tiers.
Court orders
#- 1.That the preliminary objection dated the 22nd September 2023 raised by the defendant has merit and is hereby upheld.
- 2.The plaintiff's suit, commenced through the plaint dated the 25th May 2023, is hereby struck out.
- 3.The plaintiff will pay the defendant's costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 13(1) of the Environment and Land Court Act, 2012 (as claimed by the plaintiff); jurisdiction contested under the Energy Act, 2019
Relief refused
#The plaintiff's suit continued in this court without exhausting the statutory dispute resolution mechanisms (EPRA and the Energy and Petroleum Tribunal)
The court found it lacked jurisdiction as the plaintiff filed prematurely without first invoking the statutory dispute resolution tiers
Costs
The plaintiff will pay the defendant's costs, awarded under section 27 of the Civil Procedure Act on the basis that costs follow the events.
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.
That the preliminary objection dated the 22nd September 2023 raised by the defendant has merit and is hereby upheld.
The plaintiff's suit, commenced through the plaint dated the 25th May 2023, is hereby struck out.
The plaintifi came to this court without exhausting the statutory dispute resolution mechanism outlined above and this court is therefore without jurisdiction at this stage in time.
As dictated by the decision in the case of Owners of Motor Vessel “Lillian S” [supra], the court has to down its tools as this suit was filed prematurely in court before it got seized of jurisdiction in the matter.
Issues in the judgment
#Plaintiff's submissions dated 17th January 2023, which precedes the preliminary objection of 22nd September 2023 and the directions of 9th November 2023; likely a typographical error for 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shelly Engineering Works Limited v Kenya Power and Lighting Company Plc (Environment & Land Case E062 of 2023) [2024] KEELC 4231 (KLR)", Case Analysis (2024). ELC Mombasa (suit commenced through plaint dated 25th May 2023; preliminary objection dated 22nd September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4231/eng@2024-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.