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ELCDismissedApplication dated 9th June 2025 (ELC, Mombasa)· [2025] KEELC 7630 (KLR)

Kariuki v Kenya Power & Lighting Company Limited (Environment and Land Appeal E001 of 2024) [2025] KEELC 7630 (KLR)

Environment and Land Court
5 November 2025
1,868 words in judgment
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The bottom line

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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

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Executive summary

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The appellant, registered owner of LR No. Mgumopastsa/Mazeras/540, moved the Environment and Land Court at Mombasa by an application dated 9th June 2025 seeking review, variation or setting aside of the court's appellate judgment of 17th July 2024, which had upheld a trial court's finding that it lacked jurisdiction over his trespass/wayleave claim against the respondent (KETRACO). The appellant argued that the Supreme Court's decision in Nicholus v Attorney General, confirming that property-rights disputes fall within the ELC's jurisdiction rather than that of the Energy Tribunal, constituted sufficient reason for review under Order 45(1) of the Civil Procedure Rules and section 80 of the Civil Procedure Act. The respondent opposed, contending that discovery of a new authority is not a ground for review and that the costs direction was judicially exercised. The court framed three issues: its jurisdiction to entertain the application, the threshold for review, and costs. Holding that litigation must end and invoking the functus officio doctrine, the court found no constitutional or statutory provision empowering it to review its own appellate judgment, though it retains residual jurisdiction in exceptional cases satisfying the Kamau James Gitutho test. It agreed with Nicholus that constitutional issues cannot be determined before the Energy Tribunal, but found the appellant's claim was a civil wayleave claim to be pursued through statutory dispute resolution. The application was dismissed with costs to the respondent under section 27 of the Civil Procedure Act, the court observing obiter that the appellant remains not without redress under the Energy Act 2019. Judgment was delivered virtually on 5th November 2025 by S. M. Kibunja, J.

Key legal issues

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01

Jurisdiction of the ELC to review its own appellate judgment

Holding

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.

Reasoning

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.

p. 3
02

Effect of the Supreme Court decision in Nicholus v Attorney General on the earlier appeal

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.That the appellant's application is without merit
  2. 2.That the application is hereby dismissed
  3. 3.That the appellant to pay the respondent's costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45(1)
  • Civil Procedure Actsection 80
  • Civil Procedure Actsection 27
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court Actsection 13; Chapter 8D
  • Energy Actsections 25, 35(4) and 36(3)

Cases cited (8)

  • Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)
    (Petition E007 of 2023) [2023] KESC 113 (KLR)
  • Gatere & Another v Ketraco Ltd
    [2024] KEELC 4560
  • Standard Chartered Financial Services Limited & Another v Manchester Outfitters & 2 Others
    C.A Application 224 of 2006
  • Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] KESC 8 (KLR)
  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application Number 2 of 2011
  • Kariuki v Wolff; Kariuki (Interested Party)
    [2022] KEELC 115 (KLR)
  • Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
  • Kamau James Gitutho & 3 others v Multiple Icd (K) Limited & Another
    [2019] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.