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)

3) It offends Section 3(1), 10, 11(e), (f), (k), 24, 36,40,42 and 224 (2)(e) of the Energy Act 2019 read together with Regulations 2,4,7,9 and 21 of the Energy (Complaint and Disputes Resolution) regulations 2012 read together with Article 159(2)(c) and 169(1)(d) and (2) of the Constitution and Section 9(2) and (3) of the Fair Administration Act 2015. 4) The suit violates the doctrine of exhaustion, rendering it misconceived, gravely incompetent, frivolous and an abuse of the Court process. DRAFT 2. Learned Counsel submitted that despite the suit being with respect to wayleaves and transmission of electricity, the Plaintiff failed to lodge the dispute at the first point of call when the cause of action arose on 29.1.2016, as pleaded in paragraphs 11 and 15 of the plaint, which, as per the operational law, then was the Energy Petroleum and Regulatory Authority (EPRA). Reliance is placed on Mukii –vs- KPLC ELC NO. E003 OF 2022 (2022) KEELC 15686 (KLR) (22 July 2022) (Ruling), KPLC –VS- Ndutii Civil Appeal No. E007 of 2023 and Kiringo and Others –vs- Ketraco and Others. 3. Learned Counsel for the Interested Parties, Miss Wangari, supported the Preliminary Objection. Learned Counsel Mr. Amuyunzu for the ELC NO. 278 OF 2018 RULING 2

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Plaintiff opposed the Preliminary Objection for being not a pure point of law since it requires ventilation and evidence to ascertain the facts. 4. Learned Counsel submitted that the Preliminary Objection is pegged on a repealed law and also on the amended law, which was not applicable when the cause of action arose. 5. Learned Counsel submitted that the Preliminary Objection is being raised after an inordinate delay and hence is an afterthought aimed at derailing the finalization of the suit. 6. Learned Counsel submitted that there is no evidence that the Defendant had issued a notice of entering followed by a proposal, and thereafter an objection to the same by the Plaintiff pursuant to Sections 46 and 48 of the Energy Act. DRAFT 7. In a rejoinder, learned Counsel for the defendants insisted that a point of law touching on the jurisdiction of the Court can be raised at any time during the proceedings. 8. Learned Counsel submitted that even before the repeal of the Energy Act 2006 in 2019, similar clauses were in existence, and that the forum to deal with the complaint was the Energy Regulatory Commission (ERC), which had powers to determine the amount of compensation under section 48(2) of the Energy Act 2006. 9. Learned Counsel submitted that the delay has also been occasioned by the death of the initial Plaintiff, hence the failure to raise the Preliminary Objection. ELC NO. 278 OF 2018 RULING 3

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10. A Preliminary Objection as held in IEBC –VS- Jane Cheperenger and Others (2015) eKLR should be founded upon a settled and crisp point of law, to the intent that its application to indisposed facts leads to but one conclusion, that the facts are incompatible with that point of law. 11. In Aviation and Allied Workers Union of Kenya –vs- Kenya Airways Ltd and Others(2015) eKLR, the Court said that a Preliminary Objection may only be raised on a pure question on point of law and to discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts, the facts are deemed agreed, and they are prima facie presented in the pleadings on record. 12. In Meta Platform Inc. and Others –vs- Motaung and 186 DRAFT others (2024) KECA 1262, the Court said that the term jurisdiction means the power of the Court to decide and try a case or an issue. 13. The Court said that the jurisdiction to strike out suits must be exercised sparingly and with circumspection and only when a suit is vexatious, without substance, frivolous or scandalous and only where it appears so hopeless, weak and beyond redemption by way of an amendment as held in D.T Dobie and Co. Ltd –vs- Muchina (1982)KLR1. 14. The Court said that in granting or refusing the plea to strike out, the Court exercises judicial discretion. ELC NO. 278 OF 2018 RULING 4

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15. In oraro –vs- Mbaja (2005) KENC2182 (KLR), the Court said that a Preliminary Objection must not be based on details liable to be contested and, in the event, to be proved by way of evidence. 16. The Court said that any assertion which claims to be a P.O, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authorization, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. 17. The doctrine of exhaustion was discussed in William Odhiambo Ramogi and Others –vs- AG (2020) eKLR. It arises when a litigant aggrieved by an agency’s action seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. 18. The doctrine serves the purpose of postponement of judicial DRAFT consideration of matters to ensure that a party is, first of all, diligent in pursuit of his own interest within the mechanisms in place for resolution outside the Courts. 19. The Energy (Complaint and Dispute Resolution) Regulations 2012 provide a framework for the settlement of complaints or disputes regarding licenses, permits, contracts, code of conduct, practice and operations of any party or matter. Regulation 3(1) defines what a complaint and a dispute are. 20. The Energy and Petroleum Tribunal, on the other hand, addresses conflicts relating to the Energy and Petroleum industries, including those related to electricity, Renewable energy, oil and gas. ELC NO. 278 OF 2018 RULING 5

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21. The Tribunal was established under the Energy and Petroleum Act, 2019, to provide a fair, transparent and efficient mechanism for dealing with the above disputes or complaints through complaints. The disputes include inter alia consumer, regulatory and contractual issues. Section 36(3) of the Energy Act grants the tribunal original civil jurisdiction over the above-referenced disputes. 22. Regulation 7 of the regulations places an obligation on parties to refer disputes to the tribunal. 23. Article 159(2)(c) of the Constitution recognizes alternative forms of dispute resolution as held in Albert Cheorembo Mumba and others vs Maurice Munyao and others. S.C Petition No. 3 of 2016. DRAFT 24. Section 9(2) and (3) of the Fair Administrative Actions Act provides that an Administrative action or decision cannot be reviewed by a Court unless there is exhaustion of internal dispute mechanisms available under any written law. See Night Rose Cosmetics –vs- Nairobi County Government and Others (2018) eKLR and in Secretary County Public Service Board and Another –vs-Hulbhai Gedi Abdille (2017) eKLR. 25. In REPUBLIC –VS- NEMA C. A No. 84 of 2010, the Court of Appeal upheld a High Court decision which had declined jurisdiction for non-exhaustion of the jurisdiction of the NEMA tribunal. 26. In REPUBLIC –vs- NEMA EX PARTE Sound Equipment Ltd (2011) eKLR, the Court said, however, that there are exceptional ELC NO. 278 OF 2018 RULING 6

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circumstances, especially where the suitability of the internal dispute mechanism to handle a particular dispute to grant the reliefs sought is inadequate. See also Nathan Ombati Soire and others –vs- Kenya Power and Lighting Company (2012) eKLR. 27. In Abidha Nicholas –vs- AG and Others S.C Petition No. EOO7 OF 2023, a complaint against the KPLC related to a way leave for the transmission of lines, said to be falling under Energy and Petroleum Regulatory Authority and Energy and Petroleum Tribunal before filing the suit at the ELC. NEMA had also been inactive on the non-compliance of a stop order issued against the 2nd and 3rd Respondents. 28. After reviewing the prevailing jurisprudence at the time, the DRAFT Supreme Court of Kenya emphasized that where there exists an alternative method of dispute resolution as established by legislation, courts must exercise restraint in assuming jurisdiction and must give deference to the dispute resolution mechanism outside the court to deal with specific disputes in the first instance, unless there are exceptional circumstances. 29. The Court said that Article 162(2)(b) COK and Section 13(2) ELC Act, that the Court’s original and unlimited jurisdiction is not ousted by the provisions of the energy on the EMCA Act unless such jurisdiction is specifically and expressly ousted in a constitutional compliant manner. ELC NO. 278 OF 2018 RULING 7

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30. The Court said that, notwithstanding the provisions of Section 9(2) and (4) of the Fair Administrative Actions Act, Courts are not precluded from adopting a nuanced approach. 31. In Benjamin –vs- AG and 55 Others, (Petition E042 OF 2024/2026) KESC/KLR)(23RD January 2026(judgment) the Court said that though article 159(2)(c) of the Constitution mandates Courts to promote Alternative Dispute Resolution mechanisms and as held in Chaurembo & others –vs- Maurice Munyao and Others (2019) KCS83 Eklr, courts must exercise restraint and give deference to such ADR mechanisms to deal with such specific disputes in the first instance, the question of appropriateness and competence of a forum between the Court and the forum as held in Adega and Others –vsDRAFT Kibos Distillers LTD and Others (2020) KESC 36 (KLR), must be considered. 32. The Court said that, as held in Abidha Nicholas –vs- AG and 7 others (2023) KESE 113(KLR), the doctrine of exhaustion is one to be applied as a blanket principle, otherwise the right to approach the Court for redress of alleged constitutional violation should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedom. 33. The Court emphasized that the availability of an alternative hereby does not necessarily ban an individual from seeking constitutional relief, since such a relief is contingent upon the adequacy of an existing alternative means of redress. ELC NO. 278 OF 2018 RULING 8

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34. The Court said that if an alternative remedy is deemed adequate in addressing the issue at hand, then the Court is not restrained from providing constitutional relief. 35. The Court said that what must matter at the end of the day is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that the available established ADR mechanism can offer. 36. The Court guided by BIA Tosha Distributors Ltd –vs- Kenya Breweries Ltd and Other (2023) KESC 14(KLR) said that to achieve a harmonious and effective legal framework, there is need to strike a judicious balance between the emphasis on providing the initial opportunity to the ADR forum established by law and the DRAFT assertion of a litigant’s right to access the Court, a contingency that requires a case to case assessment by considering the nature of the dispute and the adequacy of the ADR mechanism approach that safeguards litigants right to access justice while at the same time recognizing efficiency and specificity that established Alternative Dispute Resolution Mechanisms can offer. 37. Applying the foregoing case law to the instant suit, a cause of action is defined as an act on the part of the defendant which gives a cause of complaint to the Plaintiff. See DT Dobie –vs- Muchina (Supra). ELC NO. 278 OF 2018 RULING 9

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38. The cause of action by the Plaintiff is that of trespass to private land. Trespass is defined by Section 3(1) of the Trespass Act. See KPLC –VS – Ringera. 39. In David and Another –vs- Muswii (Civil Appeal 525 of (2019) (2026) KECA 375(eKLR), a Preliminary Objection had been raised that the cause of action was that of trespass. The Court cited with approval Muhammud Hafiz –vs- Muhamud Zakariya (1922) 49 1 A.G, where the Privy Council defined a cause of action as that which gives occasion for and forms the forum, the foundation of the suit. 40. The Court said that it is the pleadings rather than the parties' submissions or lawyers’ assertions from the bar that disclose or DRAFT identify a cause of action. 41. In this suit, a closer look at the plaint and the defence on record indicates or discloses beyond contest that the Plaintiff’s cause of action is that of trespass. The Defendant, in its statement of defence filed in 2016, did not raise the statutory defence or justification of entitled to lay way leaves as a statutory justification for trespass to land and or object to the jurisdiction of the Court. Conflating the Plaintiff’s cause of action with the evidence that the Defendant perhaps seeks to rely upon to prove its statement of defence, in my view, does not amount to pleadings. 42. 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 ELC NO. 278 OF 2018 RULING 10

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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. 43. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8 TH DAY OF JULY 2026. HON. JUSTICE C.K. NZILI JUDGE Delivered In the Presence of : Mr. Liech for the Defendant Mr. Mwangi for the Interested Party DRAFT Mr. Amuyunzu for the Plaintiff Julius- Court Assistant ELC NO. 278 OF 2018 RULING 11

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