Muema & another (Both Suing as the Administrators of the Estate of Mumbi Muema Mulwa - Deceased) v Kenya Power and Lighting Company Ltd (Environment and Land Petition E008 of 2024) [2026] KEELC 4941 (KLR)
The bottom line
#A Machakos court allowed landowners to sue Kenya Power over a wayleave directly, holding the Energy Act's dispute process cannot handle constitutional claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection raised a proper preliminary objection on a point of law
Yes - the objection on exhaustion raises a jurisdictional question determinable as a pure point of law
The Court applied Mukisa Biscuit and Oraro v Mbaja, holding that where a party contends a suit was filed without invoking a mandatory statutory dispute resolution mechanism, the objection raises a jurisdictional question dependent on the pleadings and applicable law, not disputed facts.
Whether the doctrines of exhaustion and constitutional avoidance barred the Petition
No - the statutory mechanism under the Energy Act cannot determine the constitutional questions and reliefs sought
Although the Energy Act establishes a dispute resolution framework covering wayleave disputes, the Petition challenges the legality of entry onto the property and the wayleave acquisition process, and seeks declarations of violations of Articles 40 and 47, constitutional compensation and damages. The Court followed Rachael Nelima Wanyonyi v Kenya Power, holding the statutory mechanism incompetent to grant the principal reliefs, so exhaustion could not be enforced.
Legal principles established
#- Where a statutory dispute resolution mechanism is not competent to determine constitutional questions and grant the constitutional reliefs sought, the doctrines of exhaustion and constitutional avoidance do not oust the Court's jurisdiction
- When the legality of the statutory process for acquiring a wayleave is challenged and constitutional relief is sought, the dispute extends beyond ordinary regulatory jurisdiction under the Energy Act
Court orders
#- 1.The Notice of Preliminary Objection dated 30th June 2026 is dismissed
- 2.The Respondent shall bear the costs of the Preliminary Objection
- 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, "Muema & another (Both Suing as the Administrators of the Estate of Mumbi Muema Mulwa - Deceased) v Kenya Power and Lighting Company Ltd (Environment and Land Petition E008 of 2024) [2026] KEELC 4941 (KLR)", Case Analysis (2026). ELCLPET E008/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4941/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.