Gatere & another v Kenya Electricity Transmission Co Ltd (Environment & Land Case E039 of 2023) [2024] KEELC 4560 (KLR)
The bottom line
#Kilifi landowners can sue KETRACO directly in the Environment and Land Court because the company never followed the legal wayleave process, though the court stopped short of halting its project.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction / exhaustion of statutory dispute-resolution mechanisms
The preliminary objection fails; the Energy Act and the 2012 Regulations do not apply to the plaintiffs' trespass and constitutional property claims
The court construed Regulation 4(a) ejusdem generis and held that 'complaint' and 'dispute' under Regulation 3 concern persons in a legal relationship with a licensee arising from a properly gazetted wayleave process. Since the plaintiffs' parcel was never gazetted and Part X of the Land Act was not complied with, no such relationship was created, so the statutory mechanism cannot be invoked against them and the ELC's original jurisdiction under Articles 22, 162(2)(b) and Section 13 of the ELC Act applies.
Whether triable issues exist
Triable issues of alleged trespass and violation of constitutional property rights exist for the substantive hearing
The defendant never rebutted the plaintiffs' evidence that their parcel LR No 12889/64 was not gazetted, that they were never involved in valuation, and that the letter of offer was never served. Part X of the Land Act governs easements and analogous rights, and the defendant did not show compliance with it as regards the plaintiffs' land.
Temporary injunction
Prima facie case shown but injunction refused as damages are an adequate remedy and public interest in the national transmission project outweighs the balance of convenience
Applying Giella v Cassman Brown, the court found a prima facie case. However, the defendant's willingness to compensate, the existence of redress structures, the constitutional provision for deprivation of property for public purposes, and prospective contractor delay penalties meant no irreparable loss not compensable by damages was established. The court nonetheless ordered the defendant to bear the costs of the application.
Legal principles established
#- The Energy Act complaint/dispute-resolution mechanisms apply only to persons who have formed a legal relationship with the Authority or its licensees through a properly invoked wayleave acquisition process; where no gazettement or notice has occurred, trespass and constitutional claims fall to be determined by the ELC's original jurisdiction and the doctrine of exhaustion does not apply
Court orders
#- 1.The defendant's preliminary objection on jurisdiction is dismissed with costs
- 2.The plaintiffs' application dated 25/10/2023 seeking a temporary injunction is dismissed
- 3.Costs of the injunction application to be borne by the defendant
- 4.Plaintiffs to file/serve within 30 days of the order and the defendant within 30 days thereafter
- 5.Matter to be mentioned on 9/10/2024 for issuance of a hearing date
- Jurisdiction invoked
- Articles 22 and 162(2)(b) of the Constitution of Kenya 2010 and Section 13(1)(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatere & another v Kenya Electricity Transmission Co Ltd (Environment & Land Case E039 of 2023) [2024] KEELC 4560 (KLR)", Case Analysis (2024). Malindi ELC Case (suit dated 24/10/2023; notice of motion filed 6/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4560/eng@2024-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.