Ndura & another v Kenya Power and Lighting Company Limited (Environment and Planning Civil Case E001 of 2023) [2024] KEELC 6693 (KLR)
The bottom line
#Landowners suing Kenya Power for trespass can go straight to the Environment and Land Court; they don't have to use energy regulator dispute channels first.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over claims of trespass by the Defendant notwithstanding the dispute-resolution mechanisms in the Energy Act, 2019 and the Fair Administrative Action Act
The Preliminary Objection is unmeritorious; the ELC has original jurisdiction over trespass claims because trespass is not an activity regulated under the Energy Act and no provision expressly ousts the ELC's jurisdiction.
The court defined trespass and found that the complaint - unlawful entry, erection of poles, installation of supply lines and destruction of trees - concerns the ownership, use and occupation of land, not a regulated activity or a licensee dispute under the Energy Act. Following the Supreme Court's Nicholus decision and its own Chonge ruling, neither EPRA nor the Tribunal has jurisdiction over trespass, and jurisdiction is not expressly ousted. The dispute belongs to a body conferred with jurisdiction by Article 162 of the Constitution and Section 13 of the ELC Act.
Whether the doctrine of exhaustion of remedies barred the suit
The exhaustion doctrine does not apply because trespass is not within the statutory dispute-resolution mechanism under the Energy Act, 2019.
The court acknowledged the exhaustion doctrine from Murage, Muthinja, Nicholus and Karume, but held it operates only where a statutory dispute-resolution mechanism covers the dispute in question. Since the complaints were of trespass - an illegality outside the regulated activities under the Energy Act - there was no statutory remedy for the Plaintiffs to exhaust before approaching the ELC.
Legal principles established
#- Acts of trespass by Kenya Power and Lighting Company do not fall within the jurisdiction of any body other than the Environment and Land Court.
- A dispute over trespass to land is not an activity or practice regulated under the Energy Act, 2019, and is therefore not within the dispute-resolution mechanisms of EPRA or the Energy and Petroleum Tribunal.
Court orders
#- 1.The Defendant's Notice of Preliminary Objection dated 18/01/2024 is dismissed
- 2.Costs of the Preliminary Objection to the Plaintiffs
- 3.Parties given 30 days to prepare their trial bundles in accordance with Order 11 of the Civil Procedure Rules, 2010
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyati Autoparts Ltd v Wandoe (Environment and Land Appeal E053 of 2025) [2026] KEELC 4790 (KLR)[2026] KEELC 4790 (KLR)21 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Ndura & another v Kenya Power and Lighting Company Limited (Environment and Planning Civil Case E001 of 2023) [2024] KEELC 6693 (KLR)", Case Analysis (2024). Not stated in the judgment extract (Plaint dated 24/10/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6693/eng@2024-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.