Kenya Power & Lighting Co. PLC v County Government of Nairobi City & another (Environment and Planning Petition E009 of 2025 & Environment and Land Petition E013 of 2025 (Consolidated)) [2025] KEELC 4390 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear constitutional petitions between governments even when tribunals or negotiation channels exist.
What this practically means
#Executive summary
#Key legal issues
#Whether Article 189 of the Constitution ousts the ELC's jurisdiction over intergovernmental disputes
It does not; the article directs governments to make every reasonable effort to settle disputes, but does not bar judicial determination.
The court read Article 189 plainly: it concerns cooperation between national and county governments and requires settlement efforts under national legislation, with sub-paragraph (4) providing that procedures shall include ADR mechanisms. The article does not limit national legislation to those mechanisms nor exclude court adjudication, so the objection founded on it fails.
Whether the doctrine of exhaustion barred the Petition, given the Water Tribunal and National Rating Act mechanisms
No; the Respondents failed to demonstrate the adequacy of those mechanisms, and adequacy cannot be determined on a preliminary objection requiring factual inquiry.
Following William Odhiambo Ramogi and the Supreme Court's decision in Abidha Nicholus, exhaustion applies only where the alternative remedy is adequate and effective. The Court cannot, on a preliminary objection, dig into facts such as why water and sewer services were disconnected, so it cannot assess whether the Water Tribunal could grant the constitutional reliefs sought. No basis of adequacy was laid.
Whether the Petition raised justiciable constitutional issues under the doctrine of constitutional avoidance
The Petition alleges violations of Articles 42, 28 and 47, and the merit of those allegations cannot be determined on a preliminary objection.
The Petitioner alleged violations of the right to a clean and healthy environment, human dignity and fair administrative action arising from water disconnection and waste dumping. Whether the Petition has merit cannot be resolved on a preliminary objection, and constitutional interpretation should not be shunned where fundamental rights are at stake and alternative mechanisms are shown to be inadequate.
Legal principles established
#- Article 189 of the Constitution does not oust the jurisdiction of the ELC; it merely requires reasonable efforts at settlement using national legislation, and does not confine those procedures to negotiation, mediation and arbitration.
- The existence of alternative dispute resolution mechanisms does not automatically oust the Court's jurisdiction over petitions alleging violations of the Bill of Rights; the party alleging want of jurisdiction must demonstrate the adequacy of the alternative mechanism.
- A preliminary objection cannot be sustained where its sufficiency depends on an inquiry into contested facts.
Court orders
#- 1.The preliminary objections dated 25.2.25 and 26.2.25 are dismissed
- 2.Costs in the cause
- 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
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Co. PLC v County Government of Nairobi City & another (Environment and Planning Petition E009 of 2025 & Environment and Land Petition E013 of 2025 (Consolidated)) [2025] KEELC 4390 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4390/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.