Kenya Power & Lighting Company v Marwa (Environment and Land Appeal E002 of 2023) [2025] KEELC 3569 (KLR)
The bottom line
#Kenya's High Court ruled that ordinary land trespass claims against Kenya Power stay in regular courts, not the Energy Tribunal, so landowners can sue directly.
What this practically means
#Executive summary
#Key legal issues
#Whether the Energy and Petroleum Tribunal had exclusive/primary jurisdiction over the trespass dispute, ousting the trial court
No. Without a licensor-licensee relationship and absent express ouster, the trial court had jurisdiction over the trespass claim.
Applying the Supreme Court's decision in Nicholus, the court held the Energy Act does not expressly oust the courts' jurisdiction. The claim was one of trespass on land, and there was no agreement or licensee relationship between the parties bringing the dispute within Sections 25, 36, 171 and 173 of the Energy Act. The trial magistrate had not determined the suit substantively, only addressing the preliminary objection.
Whether the appeal was incompetent for want of prior leave to appeal out of time
The appeal was competent; leave to file out of time had been granted by the High Court on 16th October 2023 and leave from the trial court was unnecessary.
The court found that the Appellant had obtained leave from the High Court to file the appeal out of time, and that an appeal from a subordinate court to the High Court procedurally does not require leave of the lower court, contrary to the Respondent's submission under Section 75(2) of the Civil Procedure Act.
Whether the trial magistrate erred in finding trespass at an interlocutory stage
No; the magistrate did not determine the suit substantively but only proceeded on the pleaded scenario of trespass.
The court found the trial magistrate's comments on trespass were made in the context of the pleadings and the preliminary objection, not a substantive determination of the suit, so the Appellant's complaint that the magistrate jumped the gun was unfounded.
Legal principles established
#- Neither EMCA nor the Energy Act expressly ousts the jurisdiction of the High Court/ELC over disputes involving energy matters unless such ouster is constitutionally compliant and express
- An appeal from a subordinate court to the High Court does not require leave of the lower court; time-extension leave is sought from the High Court under Section 79G
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the Respondent
- On appeal from
- Chief Magistrate's Court, Migori
- Migori CMC No. E012 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court under Article 165 of the Constitution and Section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company v Marwa (Environment and Land Appeal E002 of 2023) [2025] KEELC 3569 (KLR)", Case Analysis (2025). Migori CMC No. E012 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3569/eng@2025-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.