Muraguri (Suing as Personal Representative of the Estate of Njoki Githuku (Deceased)) v Kenya Power and Lighting Company & 15 others (Environment and Land Case 278 of 2016) [2026] KEELC 4506 (KLR)
The bottom line
#The Environment and Land Court allowed a landowner's trespass suit against a power transmission company to proceed, rejecting the company's bid to have the case thrown out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection dated 18.2.2026 is a pure point of law
- 2.Whether the Court lacks substantive jurisdiction by reason of the doctrine of exhaustion and the Energy Act dispute resolution mechanisms
- 3.Whether the suit should be struck out as frivolous, misconceived and an abuse of process
Key legal issues
#Whether the preliminary objection was a pure point of law
The objection was not a pure point of law but a mixed grill of fact and law requiring evidence, and was therefore dismissed.
Applying Mukisa Biscuit-line authorities (IEBC v Cheperenger, Aviation & Allied Workers Union, Oraro v Mbaja), the court found that the objection required ventilation of facts, such as whether a statutory wayleave notice was issued under Sections 46 and 48 of the Energy Act. The cause of action is trespass, disclosed by the pleadings themselves, and the defendant did not plead statutory justification in its 2016 defence. Conflating cause of action with anticipated defence evidence does not amount to pleadings.
Whether the ELC's jurisdiction was ousted by the Energy Act and exhaustion doctrine
The court's original and unlimited jurisdiction is not ousted unless specifically and expressly ousted in a constitutionally compliant manner; exhaustion is not applied as a blanket principle.
Relying on Abidha Nicholas v AG and Benjamin v AG, the court held that the ELC's jurisdiction under Article 162(2)(b) and Section 13(2) of the ELC Act stands unless expressly ousted, that exhaustion is nuanced, and that adequacy of the alternative forum must be assessed case by case. Whether the Energy Tribunal route was triggered or appropriate depended on facts not established.
Legal principles established
#- A preliminary objection must be founded on a settled and crisp point of law whose application to indisputed facts leads to but one conclusion.
- An assertion claiming to be a preliminary objection yet bearing factual aspects calling for proof is not a true preliminary objection.
- It is the pleadings, not submissions or assertions from the bar, that disclose or identify a cause of action.
- Where an alternative dispute resolution mechanism exists, courts must exercise restraint and give deference to it, subject to a case-by-case assessment of adequacy of the mechanism.
Court orders
#- 1.The Preliminary Objection dated 18.2.2026 is dismissed
- 2.Costs of the Preliminary Objection to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(2) of the ELC Act (original and unlimited jurisdiction of the ELC)
Relief refused
#Defendant's Notice of Preliminary Objection seeking to have the suit struck out / dismissed for want of jurisdiction and breach of the doctrine of exhaustion
It is a mixed point of law and fact requiring evidence; the cause of action is trespass to land disclosed by the pleadings, and the jurisdiction of the ELC is not ousted
Costs
The Preliminary Objection is dismissed with costs to the Plaintiff.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court therefore agrees with the Plaintiff that the Preliminary Objection before the court is not a pure point of law. To say the least, it is a mixed grill of both facts and law, which requires evidence to substantiate or determine. The Preliminary Objection is dismissed with costs to the Plaintiff.
Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8 TH DAY OF JULY 2026.
it is the pleadings rather than the parties' submissions or lawyers’ assertions from the bar that disclose or identify a cause of action.
Issues in the judgment
#Judgment heading is marked 'DRAFT' and 'RULING' throughout though styled as a ruling on a preliminary objection, and the case title of the parties is not stated in the document.
Citations contain typographical errors, e.g. 'Chaurembo & others –vs- Maurice Munyao and Others (2019) KCS83 Eklr' and 'Benjamin –vs- AG and 55 Others, (Petition E042 OF 2024/2026)'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muraguri (Suing as Personal Representative of the Estate of Njoki Githuku (Deceased)) v Kenya Power and Lighting Company & 15 others (Environment and Land Case 278 of 2016) [2026] KEELC 4506 (KLR)", Case Analysis (2026). ELC NO. 278 OF 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4506/eng@2026-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.