Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNakuru ELC Appeal (from Nakuru CMC ELC 146 of 2020)· [2025] KEELC 559 (KLR)

Kenya Power & Lighting Company PLC v Wamwere (Environment and Land Appeal E038 of 2022) [2025] KEELC 559 (KLR)

Environment and Land Court
13 February 2025
AOA.O. Ombwayo
2,319 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya Power lost its appeal against a ruling allowing a landowner to amend his trespass claim, because its jurisdictional challenge was premature.

What this practically means

#

Executive summary

#
This was the Appellant's first appeal against the ruling of Hon. E. A. Nyaloti, Chief Magistrate, delivered on 22nd November 2022 in Nakuru CMC ELC 146 of 2020, by which the trial magistrate granted the Respondent leave to file an amended plaint. The Respondent's suit sought removal of electricity poles erected on title no. IR 237754 and L.R No. 12903/1, a permanent injunction, general damages, mesne profits and loss of user, alleging trespass by the Appellant in erecting three electricity poles and an electric supply line without consent or compensation. The Appellant, through eleven grounds of appeal and written submissions, contended that the Respondent's claim fell within the Energy Act, 2019 and that jurisdiction was vested in the Energy and Petroleum Regulatory Authority and the Energy and Petroleum Tribunal, invoking the doctrine of exhaustion of local remedies, and sought setting aside of the ruling and allowance of its preliminary objection dated 18th December 2020. The Respondent maintained his claim was grounded in trespass, that no licensor-licensee relationship existed, and that the trial court had jurisdiction. The court framed a single issue: whether the appeal was merited. Applying Selle v Associated Motor Boat Company and Mwangi v Wambugu on the first appellate court's role, the court observed that the ruling appealed against dealt only with leave to amend the plaint and that the trial magistrate had not determined the preliminary objection. It held the jurisdictional challenge premature, the objection still pending, and the main suit yet to be heard on merit. The appeal was dismissed with costs. The court did not disturb the trial court's decision.

Key legal issues

#
01

Whether the appeal against the ruling granting leave to amend the plaint was merited

Holding

The appeal failed; the trial magistrate did not err in granting leave to amend, and the jurisdictional challenge via the preliminary objection was premature and still open before the trial court

Reasoning

The ruling under appeal dealt solely with the Respondent's application dated 18th February 2022 seeking leave to amend the plaint. The trial magistrate never determined the Appellant's preliminary objection dated 18th December 2020. The court held the jurisdictional issue was premature, the objection remains pending, and the Appellant may raise it before the trial court. The main suit is at an early stage and yet to be heard on merit.

p. 5

Legal principles established

#
  • A finding of fact by a trial court will not be disturbed on appeal unless it is based on no evidence, misapprehension of the evidence, or failure to take account of material circumstances or probabilities

Court orders

#
  1. 1.The appeal is dismissed with costs
  2. 2.It is so ordered

Authorities

#

Legislation

  • Constitution of KenyaArticles 48, 50(1), 169(1)(d)
  • Energy ActSections 3, 9, 11(e)(f)(i)(k)(l), 36, 170, 171, 173, 224(2)(c), Part VII
  • Energy (Complaints and Dispute Resolution) RegulationsRegulation 4(a)
  • Fair Administrative Action ActSection 9

Cases cited (15)

  • Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR)
    [2017] KESC 2 (KLR)
  • Joseph Njuguna Mwaura & 2 Others v. Republic
    [2013] eKLR
  • Cyrus Komo Njoroge V Kiringa Njoroge Gachoka & 2 Others
    [2015] eKLR
  • Albert Chaurembo Mumbo & 7 others V Maurice Munyao & 148 others
    SC Petition No 3 of 2016, [2019] eKLR
  • Night Rose Cosmetics (1972) Ltd V Nairobi County Government & 2 Others
    [2018] eKLR
  • Republic V Energy Regulatory Commission & 2 Others
    [2018] eKLR
  • Kenya Power & Lighting Company PLC v Gichure
    [2024] KEELC 3333 (KLR)
  • Nguruman Limited V Shompole Group Ranch & Another
    (2014) eKLR
  • Party of Independent Candidate of Kenya vs. Mutula Kilonzo & 2 others
  • Nedbank Swaziland Ltd V Sandile Dlamini No. (144/2010) 2012 SZHC 30 (2013)
    (144/2010) 2012 SZHC 30 (2013)
  • Cape Supplies Limited V Kenya Power & Lighting Company PLC
    (2024) KEELC 3462 (KLR)
  • Amaka Development Limited V Kenya Electricity Transmission Company Limited (KENTRACO) & Another
    (2022) KEELC (KLR)
  • Orix Oil Limited V Paul Kabeu
    (2014) eKLR
  • Selle and another v Associated Motor Boat Company Ltd and others
    [1968] 1 EA 123
  • Mwangi V Wambugu
    [1984] KLR 453
On appeal from
Chief Magistrate's Court, Nakuru
Nakuru CMC ELC 146 of 2020
Jurisdiction invoked
First appeal from the subordinate court under the Environment and Land Court's statutory appellate jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Power & Lighting Company PLC v Wamwere (Environment and Land Appeal E038 of 2022) [2025] KEELC 559 (KLR)", Case Analysis (2025). Nakuru ELC Appeal (from Nakuru CMC ELC 146 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/559/eng@2025-02-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.