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ELCDismissedNot stated in the judgment extract (Plaint dated 24/10/2023)· [2024] KEELC 6693 (KLR)

Ndura & another v Kenya Power and Lighting Company Limited (Environment and Planning Civil Case E001 of 2023) [2024] KEELC 6693 (KLR)

Environment and Land Court
1 October 2024
4,808 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs sued the Defendant, Kenya Power and Lighting Company, alleging trespass: the company allegedly erected electricity poles and supply lines on their parcels of land (Kitale Municipality/Block 18/Bidii/1652 and 1653, and Trans Nzoia/Emoru/236) without notice or consent, and on 08/11/2022 cut down and destroyed 56 indigenous trees on the 2nd Plaintiff's nature conservancy. They sought declarations of trespass, mandatory and permanent injunctions, special damages for lost rental income and the destroyed trees, and general damages. With its Appearance the Defendant filed a Preliminary Objection contending that the ELC lacked jurisdiction, the dispute falling under the Energy Act, 2019 dispute-resolution mechanisms (EPRA and the Energy and Petroleum Tribunal) and Section 9 of the Fair Administrative Action Act. The Defendant relied on exhaustion-doctrine authorities including Muthinja, Karume and Murage; the Plaintiffs relied principally on KPLC v Chonge. The court, F. Nyagaka J, applied the Mukisa Biscuit definition of a preliminary objection and held that the complaint was one of trespass to land - not an activity, practice or service regulated under the Energy Act nor a licensee dispute - so the ELC's jurisdiction under Article 162 of the Constitution and Section 13 of the ELC Act was not ousted. Relying on the Supreme Court's Nicholus decision and its own Chonge ruling, the court dismissed the Preliminary Objection with costs to the Plaintiffs and allowed the suit to proceed to trial, directing the parties to file trial bundles within 30 days.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 7
02

Whether the doctrine of exhaustion of remedies barred the suit

Holding

The exhaustion doctrine does not apply because trespass is not within the statutory dispute-resolution mechanism under the Energy Act, 2019.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Defendant's Notice of Preliminary Objection dated 18/01/2024 is dismissed
  2. 2.Costs of the Preliminary Objection to the Plaintiffs
  3. 3.Parties given 30 days to prepare their trial bundles in accordance with Order 11 of the Civil Procedure Rules, 2010

Authorities

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Legislation

  • Energy ActSections 2, 3(1), 9, 10, 11(e),(f),(i),(k),(l), 23, 24, 25, 36(1)-(6), 36(5), 40, 42, 159(3), 160(3), 224
  • Energy (Complaints and Disputes Resolution) RegulationsRegulations 2, 4, 7, 9
  • Constitution of Kenya, 2010Articles 22, 23(3), 159(2)(c), 162, 162(2)(b), 169(1)(d),(2)
  • Fair Administrative Action ActSections 2(3), 3, 9, 9(2)
  • Environment and Land Court ActSection 13; Section 4(1) (Environment and Land Act, as quoted in Nicholus)
  • Civil Procedure Rules, 2010Order 11
  • Environmental Management and Co-ordination Act (EMCA)referred to in Nicholus quotation

Cases cited (23)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] eKLR
  • SUSAN WAIRIMU NDIANGUI V PAULINE W. THUO & ANOTHER
    [2005] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Bernard Murage v Fine Serve Africa Limited & 3 Others
    [2015] eKLR
  • Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)
    (Petition E007 of 2023) [2023] KESC 113 (KLR)
  • NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae)
    (Petition 16 of 2019) [2023] KESC 17 (KLR)
  • 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
  • Geofirey Muthinja & Another Vs Samuel Muguna Henry & 1756 others
    (2015) eKLR
  • Speaker of the National Assembly vs James Njenga Karume
    (1992) eKLR
  • William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties)
    [2020] eKLR
  • Kenya Power & Lighting Company v Chonge
    (Environment and Land Appeal 2 of 2023) [2024] KEELC 418 (KLR)
  • Thomas Schering v Nereah Michael Said & 3 Others
    [2019] eKLR
  • James Mwaura Ndung'u v Kenya Power and Lighting Co. Ltd
    [2016] eKLR
  • Peter Muturi Njuguna v Kenya Wildlife Service
    NKU CA Civil Appeal No. 260 of 2013 [2017] eKLR
  • Njoroge v Kenya Power & Lighting Company
    (Constitutional Petition E533 of 2021) [2023] KEHC 1924 (KLR)
  • Elijah Mutahi & 10 Others v Kenya Power & Lighting Company Limited
    [2020] eKLR
  • Justin Karionji Nyaga v Attorney General & 2 others
    [2021] eKLR
  • Vitalis Ouma Osano vs Kenya Power and Lighting Company PLC
    [2021] eKLR
  • Gona & 56 Others v Kenya Power & Lighting Company
    (Civil Suit E064 of 2022) [2023] KEELC 16799 (KLR)
  • Richard Etyanga v Kenya Power and Lighting Company; Rural Electrification Authority (Third Party)
    [2019] eKLR
  • Abidha Nicholus vs Attorney General & 7 Others; National Environmental Complaints Committee (NECC) & 5 Others (Interested Parties)
    [2021] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.