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ELCDismissedELCLPET E008/2024· [2026] KEELC 4941 (KLR)

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)

Environment and Land Court
30 July 2026
3,048 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Petitioners, administrators of the Estate of Mumbi Muema Mulwa (Deceased), petitioned Kenya Power and Lighting Company Limited over alleged entry onto L.R. No. Mavoko Town Block 3/1921, erection of a high-voltage transmission line, and continued occupation of a wayleave without consent or compensation, seeking declarations of violations of Articles 40 and 47, nullity of the wayleave acquisition, and damages. The Respondent filed a preliminary objection dated 30th June 2026 contending that the dispute falls within the Energy Act, 2019 dispute resolution framework and that the Petitioners were bound to exhaust that statutory mechanism before approaching the Court, and sought striking out of the Petition with costs. The Petitioners countered that the objection was not a pure point of law, that the statutory mechanism cannot determine constitutional questions or grant constitutional remedies, and that exhaustion would not afford an effective remedy. Justice J. N. Kuyioni found the objection properly before the Court as a pure point of law, but held that because the Petition challenges the legality of the wayleave acquisition process and seeks constitutional declarations and relief under Articles 40 and 47, the Energy Act mechanism is not competent to determine the dispute in its entirety. Following Rachael Nelima Wanyonyi v Kenya Power Co. Ltd, the Court held that the doctrines of exhaustion and constitutional avoidance did not bar the Petition, dismissed the preliminary objection, and ordered the Respondent to bear its costs.

Key legal issues

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01

Whether the objection raised a proper preliminary objection on a point of law

Holding

Yes - the objection on exhaustion raises a jurisdictional question determinable as a pure point of law

Reasoning

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.

p. 7
02

Whether the doctrines of exhaustion and constitutional avoidance barred the Petition

Holding

No - the statutory mechanism under the Energy Act cannot determine the constitutional questions and reliefs sought

Reasoning

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.

p. 17

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 30th June 2026 is dismissed
  2. 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

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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, "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.