Kariuki v Kenya Power & Lighting Company Limited (Environment and Land Appeal E001 of 2024) [2025] KEELC 7630 (KLR)
The bottom line
#The Environment and Land Court in Mombasa ruled it cannot review its own past judgment, dismissing a landowner's challenge against KETRACO with costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to review its own appellate judgment
The court cannot review its own appellate judgment under Order 45 or section 80 as no statute confers that power; it retains only residual jurisdiction to reopen decisions in exceptional cases meeting the Gitutho criteria.
The court noted that no provision of the Constitution, the ELC Act or any statute enables the court, in its appellate capacity, to review its own decision. Relying on Macharia v Kenya Commercial Bank on jurisdiction flowing only from the Constitution or legislation, and on functus officio principles from Raila Odinga v IEBC and Kariuki v Wolff, it adopted the Court of Appeal's three-limb test in Kamau James Gitutho v Multiple Icd for the exercise of residual jurisdiction, none of which the appellant demonstrated.
Effect of the Supreme Court decision in Nicholus v Attorney General on the earlier appeal
Nicholus clarified only that constitutional issues cannot be determined before the Energy Tribunal; since the appellant's claim was a civil wayleave claim rather than a constitutional issue, the prior judgment upholding exclusive Energy Tribunal jurisdiction stands.
The court agreed with the Supreme Court that constitutional issues fall outside the Energy Tribunal's jurisdiction. However, the appellant's claim from inception was a civil claim based on wayleave rights to be pursued through statutory dispute resolution, so the new authority would not have changed the outcome. The court observed obiter that the appellant remains not without redress under the Energy Act 2019.
Legal principles established
#- The ELC, when sitting in its appellate capacity, has no statutory or constitutional power to review its own judgment, but retains residual jurisdiction exercisable only in exceptional cases where injustice has occasioned a miscarriage of justice eroding public confidence and no appeal lies.
Court orders
#- 1.That the appellant's application is without merit
- 2.That the application is hereby dismissed
- 3.That the appellant to pay the respondent's costs
- Jurisdiction invoked
- Environment and Land Court Act (Chapter 8D, Laws of Kenya); the court considered whether it possesses jurisdiction, including residual jurisdiction, to review its own appellate judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Kenya Power & Lighting Company Limited (Environment and Land Appeal E001 of 2024) [2025] KEELC 7630 (KLR)", Case Analysis (2025). Application dated 9th June 2025 (ELC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7630/eng@2025-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.