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ELCDismissedELC NO. 278 OF 2018

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)

Environment and Land Court
8 July 2026
2,301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (C.K. Nzili, J) determined a Notice of Preliminary Objection dated 18.2.2026 raised by the Defendant in a suit filed in 2018 concerning wayleaves and transmission of electricity lines over private land. The Defendant contended that the Court lacked substantive jurisdiction because the Plaintiff failed to exhaust the dispute resolution mechanisms under the Energy Act 2006 (as repealed) and the Energy Act 2019, the Energy (Complaints and Disputes Resolution) Regulations 2012, the Fair Administrative Actions Act and Article 159(2)(c) of the Constitution, and that the suit was frivolous and an abuse of process. The Plaintiff opposed, arguing the objection was not a pure point of law, was pegged on repealed and inapplicable law, was raised after inordinate delay, and that no statutory wayleave process had been pleaded. After reviewing authorities on preliminary objections (IEBC v Cheperenger, Aviation & Allied Workers Union, Oraro v Mbaja) and on exhaustion (Abidha Nicholas, Benjamin v AG, Kibos Distillers, BIA Tosha), the court held that the cause of action, as disclosed by the pleadings, is trespass to land; the Defendant had not pleaded statutory justification in its 2016 defence; and conflating the cause of action with anticipated defence evidence does not amount to pleadings. The objection was a mixed question of fact and law requiring evidence. The Preliminary Objection was dismissed with costs to the Plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection dated 18.2.2026 is a pure point of law
  2. 2.Whether the Court lacks substantive jurisdiction by reason of the doctrine of exhaustion and the Energy Act dispute resolution mechanisms
  3. 3.Whether the suit should be struck out as frivolous, misconceived and an abuse of process

Key legal issues

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01

Whether the preliminary objection was a pure point of law

Holding

The objection was not a pure point of law but a mixed grill of fact and law requiring evidence, and was therefore dismissed.

Reasoning

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.

02

Whether the ELC's jurisdiction was ousted by the Energy Act and exhaustion doctrine

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Preliminary Objection dated 18.2.2026 is dismissed
  2. 2.Costs of the Preliminary Objection to the Plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 11

Costs

The Preliminary Objection is dismissed with costs to the Plaintiff.

Quotable passages

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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.
p. 10Disposition - dismissal of preliminary objection
Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8 TH DAY OF JULY 2026.
p. 11Final orders and delivery date
it is the pleadings rather than the parties' submissions or lawyers’ assertions from the bar that disclose or identify a cause of action.
p. 10Cause of action determined by pleadings

Issues in the judgment

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minor

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.

minor

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

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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, "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.