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ELCStruck OutNot stated in the judgment· [2025] KEELC 7868 (KLR)

Kariuki & another v Kenya Power & Lighting Co. Ltd (Environment and Land Case E034 of 2024) [2025] KEELC 7868 (KLR)

Environment and Land Court
12 November 2025
1,834 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Landowners must first use the Energy Act dispute process before suing Kenya Power in court over electricity infrastructure disputes.

What this practically means

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Executive summary

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The Plaintiffs sued Kenya Power & Lighting Company Limited, alleging that on 30th July 2024 the Defendant's agents unlawfully entered land parcel L.R. Baragwe/Thumaita/3408 without notice, cut down trees, fruit trees and maize crops on the pretext that vegetation interfered with high voltage power lines, and sought a declaration of trespass, a permanent injunction requiring removal of poles, lines and a transformer, restoration of the land, compensatory damages per a valuation report, general damages for trespass said to persist since 2015, interest and costs. The Defendant filed a preliminary objection dated 23rd October 2024 contending that under the Energy Act, 2019 and the Energy (Complaints and Disputes Resolution) Regulations, 2012, EPRA and the Energy and Petroleum Tribunal have jurisdiction over such disputes and the Court's jurisdiction was therefore ousted, the suit being premature for want of exhaustion of the statutory mechanism. The Plaintiffs argued the dispute was genuinely about trespass and violation of constitutionally protected property rights under Article 40, relying on Abidha Nicholus. The Court framed a single issue: its own jurisdiction. Applying Mukisa Biscuit and Lilian S, and following Kibos Distillers, United Millers and Muthinja Kabiru, it held that although pleaded as trespass, the claim concerned a licensed electricity distributor acting in the course of operating electricity infrastructure, a dispute contemplated by the Energy Act; the Plaintiffs' failure to exhaust the alternative statutory forum rendered the suit premature. The Court upheld the preliminary objection, struck out the suit and awarded costs to the Defendant.

Key legal issues

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01

Whether the ELC had jurisdiction over the Plaintiffs' trespass claim against Kenya Power

Holding

The Court upheld the preliminary objection and struck out the suit; the claim, though framed as trespass, arises from acts done in the course of electricity infrastructure operations and falls under the Energy Act dispute framework, which the Plaintiffs did not exhaust.

Reasoning

The Court found that the underlying complaint concerned a licensed electricity distributor interfering with land while maintaining and operating electricity infrastructure, matters contemplated by the Energy Act, 2019 and its Regulations. Applying the exhaustion doctrine as articulated by the Court of Appeal and the Supreme Court's Abidha Nicholus decision, the Court held that because the Plaintiffs had an alternative statutory forum and did not use it, the invocation of the Court's jurisdiction was premature.

02

Whether the claim fell within the Mukisa Biscuit definition of a preliminary objection

Holding

Whether or not a Court has jurisdiction is a pure point of law that must be addressed in limine, consistent with the Mukisa Biscuit definition and Owners of Motor Vessel 'Lilian S'.

Reasoning

The Court adopted the classic definition of a preliminary objection as a pure point of law which, if successfully argued, may dispose of the suit. It then applied the Lilian S principle that jurisdiction is everything and a court without it must down its tools. Jurisdiction being a pure point of law, the objection was properly before the Court for determination at the outset.

p. 3
03

Whether constitutional/trespass framing could circumvent the statutory dispute mechanism

Holding

No - disputes cannot be disguised as constitutional or trespass claims to circumvent statutory mechanisms, per United Millers and Kibos Distillers.

Reasoning

The Court of Appeal in Kibos Distillers held that where Parliament provides a statutory procedure for dispute resolution it must be exhausted before resort to the courts, and in United Millers that disputes cannot be disguised as constitutional or trespass claims to circumvent statutory mechanisms. The Court applied these principles to reject the Plaintiffs' framing of the claim as trespass and constitutional violation of property rights.

p. 3

Legal principles established

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  • Where a statutory dispute resolution mechanism exists outside the courts, it must be exhausted before the court's jurisdiction is invoked; courts are fora of last resort
  • Disputes between a licensed electricity distributor and landowners concerning interference in the course of operating electricity infrastructure fall within the Energy Act dispute resolution framework

Court orders

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  1. 1.The Preliminary Objection by the Defendant is upheld
  2. 2.The Plaintiffs' suit is struck out with costs to the Defendant
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; objection raised under the Energy Act, 2019 and Article 159 of the Constitution

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 & another v Kenya Power & Lighting Co. Ltd (Environment and Land Case E034 of 2024) [2025] KEELC 7868 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7868/eng@2025-11-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.