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ELCStruck OutELC Case of 2022 (plaint dated 24th May 2022, filed 28th June 2022)· [2025] KEELC 114 (KLR)

Juma v Kenya Power & Lighting Co. Ltd (Environment & Land Case 9 of 2022) [2025] KEELC 114 (KLR)

Environment and Land Court
21 January 2025
BOBoaz N. Olao
2,877 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a landowner's power-line trespass case, ruling he must first complain to the energy regulator, EPRA.

What this practically means

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Executive summary

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The Plaintiff, Peter Owino Juma, sued Kenya Power & Lighting Company Ltd claiming that in November 2021 the Defendant, without notice or consent, encroached on land parcel Marach/Bumala/2622 and erected a High Tension power line. He sought removal of the lines, a permanent injunction and damages for trespass. The Defendant filed a defence and a Preliminary Objection dated 20th July 2022 contending that the Court lacked jurisdiction because the dispute fell within the dispute resolution mechanisms under the Energy Act 2019 and the Energy (Complaints and Dispute Resolution) Regulations 2012, namely EPRA and the Energy and Petroleum Tribunal. The Plaintiff countered that under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, trespass to land falls within this Court's jurisdiction, citing Cape Suppliers and Swaminarayan Flats. The Court, per Boaz N. Olao J, held that the objection was a proper preliminary objection on jurisdiction. While acknowledging jurisdiction over trespass under Section 13(2)(e) of the Environment and Land Court Act, the Court found that the Energy Act and its Regulations establish a three-tier dispute resolution mechanism covering wayleaves, easements and rights-of-way, which the Court of Appeal in Abidha Nicholus confirmed. Applying the exhaustion doctrine as articulated in Njenga Karume and by the Supreme Court in Chaurembo Mumba and United Miller, the Court held EPRA was the Plaintiff's first port of call. The Preliminary Objection was upheld, the suit struck out, with costs to the Defendant.

Key legal issues

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Jurisdiction of the Environment and Land Court over disputes involving electricity wayleaves/easements vis-à-vis the Energy Act dispute resolution mechanism

Holding

Although the Court has jurisdiction under Section 13 of the Environment and Land Court Act over trespass to land, the Plaintiff's first port of call is EPRA, and the statutory procedure must be exhausted before approaching this Court

Reasoning

The claim is hinged on trespass to land, which falls under Section 13(2)(e) of the Environment and Land Court Act. However, the Energy Act 2019 and the Energy (Complaints and Dispute Resolution) Regulations 2012 establish a three-tier mechanism - EPRA, then the Energy and Petroleum Tribunal - covering wayleaves, easements and rights-of-way. The Court of Appeal in Abidha Nicholus confirmed this. Following Njenga Karume and the Supreme Court's exhaustion jurisprudence, the statutory procedure must be strictly followed.

p. 6
02

Nature of the Preliminary Objection

Holding

The objection is a proper preliminary objection on jurisdiction

Reasoning

The objection questions the Court's jurisdiction, which is a pure point of law as defined in Mukisa Biscuit. Jurisdiction is everything; without it, the Court must down its tools.

p. 2

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
  • Where an alternative dispute resolution method is established by legislation, courts must exercise restraint and defer to the statutory dispute resolution bodies in the first instance

Court orders

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  1. 1.The Preliminary Objection dated 20th July 2022 is up-held
  2. 2.The Plaintiff's suit is struck out
  3. 3.Costs to the Defendant
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Juma v Kenya Power & Lighting Co. Ltd (Environment & Land Case 9 of 2022) [2025] KEELC 114 (KLR)", Case Analysis (2025). ELC Case of 2022 (plaint dated 24th May 2022, filed 28th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/114/eng@2025-01-21

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