Kenya Power & Lighting Company Limited v Kamau (Environment and Land Appeal 20 of 2024) (Environment and Land) [2024] KEELC 5332 (KLR)
The bottom line
#A landowner must first take disputes with Kenya Power to the Energy and Petroleum Tribunal, not court, or the case will be struck out.
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 raised in the trial court should be sustained.
- 2.Whether the trial court had jurisdiction to hear and determine the matter before it.
Key legal issues
#Whether the dispute fell within the Energy and Petroleum Tribunal's jurisdiction under the Energy Act, 2019
Yes - the dispute between a licensee and a third party over trespass in the course of wayleave activities falls squarely under the Tribunal's original civil jurisdiction under Section 36.
The court construed the Energy (Complaints and Disputes Resolution) Regulations, 2012 ejusdem generis and found the matter regulated under the Energy Act, 2019. Section 36(3) gives the Tribunal original civil jurisdiction over disputes between a licensee and a third party, and Section 36(5) empowers it to grant equitable reliefs including damages. Section 177 expressly contemplates compensation claims by landowners against licensees for trespass and damage.
Whether the Preliminary Objection was properly constituted
Yes - an objection to jurisdiction is a pure point of law and a proper preliminary objection.
The court applied the Mukisa Biscuit definition, noting that an objection to jurisdiction is expressly cited as an example of a proper preliminary objection, and the IEBC v Cheperenger purposes. The objection was based purely on the statutory allocation of jurisdiction, not contested facts.
Doctrine of exhaustion of administrative remedies
The doctrine compelled the Respondent to first resort to the EPRA and Energy and Petroleum Tribunal mechanisms before filing suit.
The court invoked Article 159(2)(c), Section 9 of the Fair Administrative Action Act and the Court of Appeal's jurisprudence (Republic v NEMA; United Millers Ltd v KEBS) that statutory appeal/dispute procedures must be exhausted and that pleadings cannot be dressed to attract superior-court jurisdiction.
Legal principles established
#- Where a statutory dispute-resolution mechanism exists, it must be exhausted before recourse to court.
- Jurisdiction of a court derives only from the Constitution or statute and cannot be arrogated.
Court orders
#- 1.Appeal allowed with costs to the Appellant
- 2.The ruling and orders of the trial court dated 6th February 2023 in Engineer SPMC ELC No. 38 of 2021 set aside for lack of jurisdiction
- 3.The Respondent's suit before the trial court struck out with costs to the Appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court at Engineer
- Engineer SPMC ELC No. 38 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over a preliminary objection ruling from a subordinate court
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.
The upshot of the foregoing is that the court finds merit in the Appellant's appeal and the same is allowed with cost.
The ruling and orders of the trial court dated 6th February, 2023 in Engineer SPMC ELC No. 38 of 2021 is set aside for lack of jurisdiction.
The Respondent's suit before the trial court is hereby struck out with costs to the Appellant.
It is distinctly improper for a party to resort to the Preliminary Objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.
Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to the relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute
Issues in the judgment
#The appeal number of the present matter is not stated anywhere in the judgment; the case number 'Engineer SPMC ELC No. 38 of 2021' refers to the lower-court suit.
The court cites Section 90 of the Fair Administrative Action Act for the doctrine of exhaustion although the section the court quotes (exhaustion of internal mechanisms before judicial review) is in fact section 9; the Appellant's submissions had cited section 9(2) and (3).
The judgment refers to 'Section 37' as stating appeal provisions, but the quoted subsection (3) appeal to the High Court from the Tribunal corresponds to Section 36(3) as earlier quoted, suggesting a misnumbering.
Name of the Respondent is never given in the judgment; the parties are referred to only as Appellant and Respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Limited v Kamau (Environment and Land Appeal 20 of 2024) (Environment and Land) [2024] KEELC 5332 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5332/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.