Zaddock Madiri Syong'oh v Kenya Power & Lighting Co Ltd

d) The Appellant’s appeal outrightly offends the provisions of Section 13 of the Environment and Land Court Act, CAP 8D which limits the jurisdiction of this Honourable court to environment and land matters. 2. The Appellant filed a replying affidavit sworn on the 3 rd August 2026. He deponed that in as much as the issues raised related to excessive billing which falls under the Energy Act, the appeal also raised issues of trespass, unlawful entry which matters are touching on the use, occupation and interests in land hence within the jurisdiction of this court. 3. That Section 37 (3) in stating that any appeal from the energy tribunal lies to the high court did not restrict it to not include the environment court as it was a court of equal status with the high court hence could entertain an appeal from the tribunal 4. The court directed for the notice of Preliminary Objection be dispensed off by written submissions and both parties complied with the Respondent drafting submissions dated 10th July 2026 while the Appellant drafted submissions dated 4th August 2026. Respondent’s submissions 5. In support of their Notice of Preliminary Objection the Respondent submitted that the issue raised was touching on jurisdiction and invited the court to make a finding that it did not have the requisite jurisdiction as the issues before the tribunal concerned electricity supply and billing under the Energy Act. The said dispute concerned ELCLA E239 OF 2025 R 2

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neither ownership of land nor environmental issues and consequently, the appeal did not fall within the jurisdiction conferred upon this Honourable court by either the constitution or statute relying on the case of Phoenix of EA Assurance Company Limited -Vs- SM Thiga t/a Newspaper Service [2019] eKLR, 6. That the appeal filed did not raise any land-related dispute and as such the same should not be entertained by this court rather the appeal falls within the civil jurisdiction of the High Court and not the environment and land court. Appellant’s submissions 7. The Applicants submitted that the Respondent’s Preliminary Objection was not raising a pure point of law hence does not meet the definition of what constitutes a Preliminary Objection. That at the core of the appeal the issues that were coming up did not just touch on billing but also on trespass and interference with land rights which issues will cause this court to consider the pleadings from the tribunal. They further reiterated the contents of their replying affidavit that the definition of high court in Section 37(3) of the Environment Act also captured the Environment and Land Court hence this court has the jurisdiction to determine the same Analysis and determination ELCLA E239 OF 2025 R 3

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8. Having considered the Notice of Preliminary Objection and the submissions herein the only issue for determination is whether the Notice of Preliminary Objection dated 17th March 2026 is merited. The threshold of a Preliminary Objection was set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd Vs- West End Distributors Ltd (1969) EA 696 as follows:“...a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a Preliminary Objection may dispose of the suit. “The Court went further to note that: -“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of Preliminary Objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.’’ The Notice of Preliminary Objection dated 17th March 2026 is founded on the notion that the suit is improperly before this court as it lacks jurisdiction to entertain the same. It goes without saying that without the requisite jurisdiction a court of law down its tools meaning that the objection, if successful, is capable of finally disposing the whole matter. The objection, therefore, attains the threshold of a pure preliminary point of law. ELCLA E239 OF 2025 R 4

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9. On the merits of the Preliminary Objection the court is called upon to look at what issues are being canvased in the appeal. Does the appeal raise any issue to do with use an occupation of land as captured in Article 162 (2) (b) of the Constitution which provides that Parliament shall establish a court with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land? Parliament indeed enacted the Environment and Land Court Act, 2011 which Act gives this court its jurisdiction under Section 13 which elaborates on the issues which the court should deal with in relation to the environment use, occupation and title to land. 10. Section 13, the Environment and Land Court Act provides that: 13“(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; b) relating to compulsory acquisition of land; ELCLA E239 OF 2025 R 5

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c) relating to land administration and management; d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and e) any other dispute relating to environment and land. (3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. (4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the tribunals decisions in of respect of subordinate matters courts falling or local within the jurisdiction of the Court 11. Anchoring on the above then the question is what is listed as above forming part of the Appellants issues raised in the appeal. I have perused the memorandum of appeal dated 12 th November 2025 that raises 12 grounds of appeal and not one of the grounds touch on what is envisioned as use and occupation of land as in Section 13 of the Environment and Land Act. The Appellant claims the issue of trespass is also part of the appeal but has not raised anything to do with the same in the appeal and neither have ELCLA E239 OF 2025 R 6

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the prayers in memorandum of appeal asked for orders that point to trespass, or unlawful entry by the Respondent. 12. In this case the appeal before Court does allege any violations in regards proprietary rights but rather issues to do with billing in relation to the meters provided by the Respondent which ordinarily points to issues touching on accounting making the appeal commercial in nature. The Court of Appeal in Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates -Vs- Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates [2019] KECA 504 (KLR), Court stated that: -“(12)We reiterate the position taken in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna (supra), that in construing whether the ELC had jurisdiction in a matter, the consideration must be the dominant issue in the dispute and whether that issue relates to the environment and the use and occupation of, and title to, land. The dispute between the Appellant and the Respondent related to the professional undertaking given by the Appellant to facilitate the land transaction between his client and the Respondent’s client.” 13. Applying the “dominant test” question to the present case, I am of the firm view that the dispute in this case is purely commercial for this reason, I find that the suit falls squarely within the jurisdiction of the High Court. Final disposition 1. The upshot of the above is that I hold as below; ELCLA E239 OF 2025 R 7

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i. That the notice of Preliminary Objection dated 17th March 2026 is merited. ii. This suit is hereby transferred to High Court (Commercial and Tax Division) for hearing and determination and the Deputy Registrar of this Court is directed to facilitate the same. iii. Costs to abide the determination of the appeal. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on this 24th day of September 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Wahome for the Plaintiff/Applicant Mr. Munene for the Respondent Ms. Mwangi Court Assistant ELCLA E239 OF 2025 R 8

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