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ELCDismissedNot stated in the judgment (Environment and Land Court case; preliminary objection dated 11th November 2024)· [2025] KEELC 8003 (KLR)

St Patrick’s Hill School Limited v Kenya Power & Lighting Company Limited (Environment and Land Case E096 of 2024) [2025] KEELC 8003 (KLR)

Environment and Land Court
13 November 2025
MMM.D. Mwangi
2,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.D. Mwangi, J) determines a preliminary objection dated 11th November 2024 by the Defendant, Kenya Power and Lighting Company Ltd, challenging the Court's jurisdiction to entertain a suit by St. Patrick's Hill School Limited alleging unauthorised entry onto its land and installation of electric supply lines without notice or consent, contrary to sections 171 and 173 of the Energy Act, 2019, and in violation of its constitutional right to property under Article 40. The Defendant contended that the suit contravened various provisions of the Energy Act, the Energy (Complaints and Dispute Resolution) Regulations, 2012, the Fair Administrative Action Act, 2015, and the Constitution, and that exclusive jurisdiction lies with EPRA and the Energy and Petroleum Tribunal. The Plaintiff opposed, asserting the suit lies within the Court's jurisdiction under Article 162(2)(b). The Court applied the Mukisa Biscuit test, noting the objection was imprecise and interwoven with contested factual issues (consent, notice, trespass). Following Ndura & Another v Kenya Power and Lighting Company Limited, the Court held that trespass and breach of statutory prerequisites are illegalities for the courts, not the regulatory bodies. The preliminary objection was dismissed with costs to the Plaintiff, and the matter was directed to proceed to full hearing.

Key legal issues

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01

Whether the Energy Act regulatory scheme (EPRA/EPT) ousts the Environment and Land Court's jurisdiction over a claim of trespass by a licensee

Holding

The Court has jurisdiction because the plaintiff's claim alleges unauthorised entry and installation without notice or consent, contrary to sections 171 and 173 of the Energy Act, amounting to trespass and illegality rather than a regulated dispute over licence, tariff, connection or compensation.

Reasoning

The Court distinguished between disputes arising under the regulatory scheme (licence, tariff, compensation by consent) and outright illegalities such as unauthorised entry onto land. Where the statutory prerequisites of notice and consent are alleged not to have been met, the matter engages the use and occupation of land and falls within the ELC's original jurisdiction under Section 13 of the ELCA and Article 162(2)(b). The Court adopted the reasoning in Ndura & Another v Kenya Power and Lighting Company Limited.

p. 4
02

Whether the preliminary objection raises pure points of law

Holding

The objection is interwoven with contested factual issues (consent, notice, occurrence of trespass) that cannot be resolved on law alone, and was also lacking in precision and particulars.

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. Here, whether consent was given, notice served, and trespass occurred are matters requiring assessment of evidence. The objection as framed was also imprecise, stating merely that the suit contravenes various statutory and constitutional provisions without particulars. Hence it could not dispose of the suit at the interlocutory stage.

p. 5

Legal principles established

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  • A preliminary objection must raise pure points of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact is to be ascertained.
  • Where a party acts outside the regulatory scheme, such as entering land without notice or consent under sections 171 and 173 of the Energy Act, the resultant illegality of trespass is for the courts, not the regulatory bodies, to determine.

Court orders

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  1. 1.The Defendant's preliminary objection dated 11th November 2024 is dismissed
  2. 2.Costs of the preliminary objection to the Plaintiff
  3. 3.The matter to proceed to a full hearing so that the evidence can be properly examined and the rights of the parties adjudicated on their merits

Authorities

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Legislation

  • Energy ActSections 3, 10, 11(e), (f), (i), (k) & (l), 23, 24, 25, 36, 40, 42, 159(3), 160(3), 171, 173, 224(2)(e)
  • Energy (Complaints and Dispute Resolution) RegulationsSections 2, 4, 7, 9
  • Fair Administrative Action ActSections 3, 9(2)
  • Constitution of Kenya, 2010Articles 22, 40, 159(2)(c), 162(2)(b), 169(1)(d) and (2)
  • Environment and Land Court Act, 2011Section 13(1), 13(2)(d), (e)
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Ndura & Another v Kenya Power and Lighting Company Limited
    (Environment & Land Court Case E001 of 2023) [2024] KEELC 6693 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, 2011

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, "St Patrick’s Hill School Limited v Kenya Power & Lighting Company Limited (Environment and Land Case E096 of 2024) [2025] KEELC 8003 (KLR)", Case Analysis (2025). Not stated in the judgment (Environment and Land Court case; preliminary objection dated 11th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8003/eng@2025-11-13

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