Kenya Power & Lighting Company Limited v Mutunga (Environment and Land Appeal 6 of 2023) [2025] KEELC 2895 (KLR)
The bottom line
#Kenyans with disputes against Kenya Power must take those disputes to the Energy and Petroleum Tribunal first, not the regular courts.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Energy and Petroleum Tribunal over licensee–third party disputes
The dispute over electricity overhead wires on the respondent's private land falls squarely within the Tribunal's jurisdiction under sections 25 and 36 of the Energy Act, 2019; the trial court had no jurisdiction.
Section 25 establishes the Energy and Petroleum Tribunal and section 36 confers original civil jurisdiction over disputes between a licensee and a third party relating to the energy and petroleum sector. The dispute concerned energy infrastructure (overhead wires) on private land, so the respondent was bound to refer it to the Tribunal. The trial Magistrate erred in finding jurisdiction contrary to these provisions.
Nature of a preliminary objection
A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct, per Mukisa Biscuit.
The court adopted the classic definition in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd, as cited with approval by the Supreme Court in Hassan Ali Joho, and the observations in IEBC vs Jane Cheperenger on the proper purpose of preliminary objections.
Exhaustion of alternative remedies under the Fair Administrative Actions Act
The appellant's construction of overhead lines was an administrative action affecting the respondent's rights; the respondent was required to exhaust remedies available under other written law, i.e. the Tribunal, before coming to court.
Section 9 of the Fair Administrative Actions Act bars judicial review or review of administrative action unless mechanisms and remedies available under any other written law are first exhausted. Section 2 defines administrative action to include any act, omission or decision affecting legal rights or interests. The appellant's construction of the lines was such an action, hence the Tribunal was the proper forum.
Legal principles established
#- The Energy and Petroleum Tribunal has exclusive original civil jurisdiction over disputes between a licensee and a third party relating to the energy sector, including claims concerning electricity infrastructure on private land.
- Jurisdiction flows from the constitution or legislation or both; a court without jurisdiction must down its tools.
- Where a written law provides remedies before a specialised tribunal, those remedies must be exhausted before resorting to court.
Court orders
#- 1.Appeal allowed
- 2.Ruling of the learned trial Magistrate dated 10th March 2022 set aside
- 3.Substituted with an order upholding the preliminary objection and striking out the respondent's claim in the lower court
- 4.Costs of the suit in the lower court and of the appeal awarded to the appellant
- On appeal from
- Principal Magistrate's Court, Machakos
- Machakos ELC E374 of 2021
- Jurisdiction invoked
- First appeal from the Principal Magistrate's Court (Machakos ELC E374 of 2021)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Limited v Mutunga (Environment and Land Appeal 6 of 2023) [2025] KEELC 2895 (KLR)", Case Analysis (2025). Machakos ELC E374 of 2021 (Appeal from Ruling of 10th March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2895/eng@2025-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.