https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6862

Comfy Knitting Company Limited v Kenya Power and Lighting Company (Miscellaneous Application E350 of 2025) [2026] KEHC 6862 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6862 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Miscellaneous Application E350 of 2025 BK Njoroge, J May 14, 2026 Between Comfy Knitting Company Limited Applicant and Kenya Power And Lighting Company Respondent Ruling 1.This Ruling is in respect of a Preliminary Objection raised by the Respondent, Kenya Power And Lighting Company. It is dated 8.4.2025. It challenges the jurisdiction of this Court to hear and determine this dispute. It maintains that the jurisdiction lies with other bodies and Tribunals established under the Energy Act and not the Court. Background Facts 2.The Applicant filed a Miscellaneous Application dated 4th April, 2025. It arose out of a disconnection of its power supply. The Applicant sought an injunction before this Court as follows:“1.That the Application be certified urgent and service thereof be dispensed with in the first instance.2.That this Honourable Court be pleased to compel the Respondent, through its officers to immediately reconnect power to the Applicant's business premises without fail pending the hearing and determination of this Application.3.That the costs of this Application be awarded to the Applicant.” 3.The Respondent opposed the application and raised a Notice of Preliminary Objection dated 8th April, 2025. It raised the following grounds:“Take notice that the Respondent shall at the earliest opportune time raise a preliminary objection that this Honourable Court lacks jurisdiction to hear and determine this dispute and suit as against the Respondent and together with all consequential orders should be struck out with costs as the same offends the following provisions:1.sections 3(1), 10; 11(e), (f), (i), (k) & (l); 23; 24; 25; 36; 40; 42; 159(3); 160(3) and 224(2)(e) of the Energy Act, 2019 together with,2.Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012 as read together with,3.Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010 and, Sections 9(2) and (3) of the Fair Administration Act, 2015.” 4.The Respondent also filed Grounds of Opposition dated 8.4.2025. It raised the following grounds in rebuttal to the Applicant’s Notice of Motion;1.That this Court lacks jurisdiction to hear and determine this suit, and application as framed.2.The entire application is misconceived, bad in law, incurably defective, premature, incompetent and otherwise legally untenable.3.There is no legal or factual basis that has been demonstrated to warrant the orders sought by the Applicant since it is frivolous and baseless in nature.4.The Applicant said application is therefore incompetent, defective, bad in law, wanting in merit and is an abuse of the hallowed court process.5.The application does not certify the conditions as set out in the case of Giella vs. Cassman Brown thus, the orders being sought ought not to be granted to the Applicant.6.The Respondent’s case is that there was no illegal disconnection of power from the Applicant alleged premises.7.That if in any case there was any disconnection of power from the Applicant premises, which is denied, the purported and alleged disconnection was authorized by the Respondent in respect to the well set out protocols to be observed on such occasions.8.The Applicant is deliberately misleading this Honourable Court to believe that he indeed has a factual claim as against the Respondent.9.The Applicant said application is therefore in furtherance of a game of chance and fishing.10.That the application is frivolous, an abuse of the Court process and ought to be dismissed with Costs. Issues for Determination 5.The Court has considered the Notice of Preliminary Objection, the Grounds of Opposition and the written submissions and the oral highlights by Counsel for the parties. 6.The Court frames a single issue for determination as follows:a.Whether the Court lacks jurisdiction to hear and determine the case. Analysis 6.The Leading Case on Preliminary Objection is Mukisa BiscuitMukisa Buiscuits Manufacturing Co. Ltd. Vs West End Distributors Ltd [1969] EA 696. The Court of Appeal stated as follows;“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 other 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.” Whether the Court lacks jurisdiction to hear and determine the case. 7.This Court has been referred to the cases of Mwaura & 2 others v Republic [2013] KECA 541 (KLR). The Court of Appeal held as follows:“It is incumbent upon any court intending to render an opinion or determine matter to first ascertain the entry point to the doors of justice, and that is jurisdiction. The authority of the court is determined by the existence or the lack of jurisdiction to hear and determine disputes. In essence, jurisdiction is the first hurdle that a court will cross before it embarks on its decision-making function.” 8.It follows that when the issue of jurisdiction is raised, the Court has to first determine it. This is because to proceed and act without jurisdiction would be an act in vain. The Court reminds itself for the words in the familiar decision of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR).“A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter was then obliged to decide the issue right away on the material before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction.” 9.The Defendant submits that this dispute properly lies before the Energy & Petroleum Regulatory Authority or in the Alternative the Energy & Petroleum Tribunal. 10.Section 3 (1) of the Energy Act states as follows:3.Act to prevail(1)If there is a conflict between this Act and any other Act, this Act shall prevail on the following matters—(a)the importation, exportation, generation, transmission, distribution, supply or use of electrical energy;(b)the exploration, production, transportation, distribution, and supply of any other form of energy; and(c)all works and apparatus for any or all of these purposes. 11.The Court was referred to the Case of Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) [2021] KEELC 4495 (KLR). On Section 3 the Energy Act the Court, Ombwayo J. stated as follows:“The import of the above is that the Energy Act 2019 prevails over any other Act of Parliament or law but definitely not over the Constitution of Kenya 2010. However, there is no indication that the Act is in conflict with the Constitution of Kenya 2010. If there was any such conflict, then the Constitution would prevail. 12.An Energy & Petroleum Regulatory Authority is created by Section 9 of the Energy Act. At Section 11 of the Act, it provides for the power of that authority as follows:11.Powers of the AuthorityThe Authority shall have all powers necessary for the performance of its functions under this Act and in particular, the Authority shall have the power to—(a)issue, renew, modify, suspend or revoke licences and permits for all undertakings and activities in the energy sector;(b)set, review and approve contracts, tariffs and charges for common user petroleum logistics facilities and petroleum products;(c)set, review and adjust electric power tariffs and tariff structures and investigate tariff charges, whether or not a specific application has been made for a tariff adjustment;(d)prescribe the form and manner in which any application for any authority, licence, consent or approval under this Act shall be made and the fees payable in respect of such application;(e)make and enforce directions to ensure compliance with this Act and with the conditions of licenses issued under this Act;(f)issue orders in writing requiring acts or things to be performed or done, prohibiting acts or things from being performed or done, and may prescribe periods or dates upon, within or before which such acts or things shall be performed or done or such conditions shall be fulfilled;(g)formulate, set, enforce and review environmental, health, safety and quality standards for the energy sector in coordination with other statutory authorities;(h)approve electric power purchase and network service contracts for all persons engaging in electric power undertakings;(i)investigate and determine complaints or disputes between parties over any matter relating to licences and licence conditions under this Act;(j)enter, inspect and search any premises where an offence is being committed or is suspected to have been committed;(k)issue orders or directions to ensure compliance with this Act;(l)impose such sanctions and fines not exceeding one hundred thousand shillings per violation per day for a maximum of thirty days;(m)enter, inspect and search any premises at which any undertaking relating to petroleum operations is carried out or an offence is being committed or is suspected to have been committed;(n)issue orders either requiring acts or things to be performed or done, prohibiting acts or things from being performed or done, and may prescribe periods or dates upon, within or before which such acts or things shall be performed or done or such conditions shall be fulfilled in furtherance of its powers under the law relating to petroleum;(o)impose such sanctions and civil fines not exceeding five hundred thousand shillings per violation per day to secure compliance with orders issued under the law relating to petroleum;(p)take or remove, for analysis, testing or for use in evidence in connection with the commission of an offence under the law relating to petroleum, samples of petroleum or other substances from any area where any upstream petroleum operations are being carried on; and(q)inspect, take extracts from, or make copies of any document relating to any upstream petroleum operations. 13.Further the Act has created the Energy (Complaints and Disputes Resolution) Regulations 2012. These are established under the now repealed Energy Act 2006. They are however retained in the transition provisions of the current Act which states as follows;(e)any subsidiary legislation issued before the commencement of this Act shall, as long it is not inconsistent with this Act, remain in force until repealed or revoked by subsidiary legislation under the provisions of this Act and shall, for all purposes, be deemed to have been made under this Act. 14.Section 2 of the Regulations states as follows.These Regulations shall apply, to any person who has a complaint or a dispute regarding any licence, permit, contract, code, conduct. practice or operation of any party or any matter regulated under the Act. 15.Regulation 4 of the Regulations identifies the disputes that ought to be heard by the authority as follows:a.billing, damages, disconnection, health and safety, electrical installations, interruptions, licensee practices and procedures, metering, new connections and extensions, reconnections, quality of service, quality of supply, tariffs, way leaves, casements or rights-of-way in relation to the generation, transmission, distribution, supply and use of electrical energy.b.damages, adulteration and under-dispensing of products, licensee practices and procedures, health and safety in relation to the importation, refining, exportation, wholesale, retail, storage or transportation of petroleum products; andc.any other activity and/or matter regulated under the Act. 16.These Regulations provide a complete code of dispute resolutions as can be seen from Regulation 7, 9 and 21 which even provides for an appellate procedure. 17.It is also submitted that there exists an Energy & Petroleum Tribunal set up under Section 25 of the Energy Act. Section 36 of the Act provides for the Jurisdiction of that Tribunal as follows:36.Jurisdiction of the Tribunal(1)The Tribunal shall have jurisdiction to hear and determine all matters referred to it, relating to the energy and petroleum sector arising under this Act or any other Act.(2)The jurisdiction of the Tribunal shall not include the trial of any criminal offence.(3)The Tribunal shall have original civil jurisdiction on any dispute between a licensee and a third party or between licensees.(4)The Tribunal shall have appellate jurisdiction over the decisions of the Authority and any licensing authority and in exercise of its functions may refer any matter back to the Authority or any licensing authority for re-consideration.(5)The Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance.(6)The Tribunal shall hear and determine matters referred to it expeditiously. 18.Section 36 of the Act provides for an original civil jurisdiction in disputes between Licensees and Third parties. This is in the following manner;The Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance. 19.It is clear that from Section 36 (5) of the Act that the Tribunal can grant injunctive reliefs such as are sought herein. 20.There is therefore in place of an elaborate dispute resolution procedure, set out in the Energy Act. 21.For that reason, the Respondent invoke the doctrine of exhaustion of remedies. It also invokes the application of the Fair Administrative Act of 2015. 22.The Respondent therefore relies on the case of Thomas Schiering v Nereah Michael Said & 2 others [2019] KEELC 1722 (KLR); Alice Mweru Ngai v Kenya Power & Lighting Co. Ltd [2015] KEHC 5405 (KLR); James Kibugi Githinji v Kenya Power & Lighting Company Limited [2016] KEHC 4141 (KLR) and several other cases with a similar outcome. 23.The Plaintiff sees the Preliminary Objection as means to deny it a fair hearing. 24.It also referred to the doctrine of exhaustion and strongly submits that this does not remove the parties from the Courts or bars them from accessing the Courts. 25.It is submitted that the dispute has constitutional overtones. That disconnecting of electricity without notice is an infringement of the customers’ freedom and liberties guaranteed under the Bill of Rights. 26.This Court was reminded that it has an original and unlimited jurisdiction under Article 165(3)(a) of the Constitution of the Republic of Kenya. 27.The Court was referred to Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] KEHC 8358 (KLR) and Hon. Lemanken Aramat vs Harun Meitamei Lempaka & 2 Others [2014] (eKLR). 28.On the doctrine of exhaustion, the Court was referred to Chief Justice and President of the Supreme Court of Kenya & another v Khaemba [2021] KECA 322 (KLR). That the Court still retains a residual jurisdiction. 29.This Court then turns to the foundation of this case to establish whether it has the jurisdiction to hear the dispute. 30.The Court notes that there is no Plaint, as a foundation upon which the application for an injunction by way of a Notice of Motion dated 4.4.2025 is made. 31.An application for an injunction cannot be the foundation of a suit. In an application for an injunction, a party needs to establish a prima facie case. A miscellaneous case or proceedings falls short of that. 32.As to whether the dispute lies before this Court or the organs set up under the Energy Act, the Court finds in favour of the Respondent. 33.The Court follows the decision of Sila Munyao J (as he then was) in Ochoki (Suing as the administrator of the Estate of Ochoki Mogeni - Deceased) v Kenya Power and Lighting Company Limited [2025] KEELC 1076 (KLR). The Court citing other decisions stated as follows:“It appears that this issue has been determined in previous cases and Mr. Maanzo actually provided a plethora of them. For example in Kenya Power & Lighting Company PLC vs Jane Njoki Gichure (supra), the respondent filed suit inter alia for trespass as the appellant had erected poles on her land. A preliminary objection was raised before the trial Magistrates’ Court that the court had no jurisdiction but the objection was dismissed. On appeal, Angima J, held that the claim related to a matter regulated under the Energy Act, 2019, as it concerned a dispute between licencee (the appellant) and a third party ( the respondent) on the alleged action of constructing electricity lines on her land. He noted that Part VII of the Act deals with wayleaves and therefore the activity of the appellant was one which the Energy Tribunal had jurisdiction. A similar decision was also reached by Dena J, in the case of Sombo K Sombo & 2 Others vs Ketraco & Others (supra), the issue again being on laying of electricity lines on the plaintiffs’ parcel of land.12.I am not persuaded to depart from these decisions of my learned brothers and sisters. I have indeed looked up at the various Sections of the law outlined by Mr. Maanzo particularly Section 36 of the Energy Act, which provides as follows :36.Jurisdiction of the Tribunal1.The Tribunal shall have jurisdiction to hear and determine all matters referred to it, relating to the energy and petroleum sector arising under this Act or any other Act.2.The jurisdiction of the Tribunal shall not include the trial of any criminal offence.3.The Tribunal shall have original civil jurisdiction on any dispute between a licensee and a third party or between licensees.4.The Tribunal shall have appellate jurisdiction over the decisions of the Authority and any licensing authority and in exercise of its functions may refer any matter back to the Authority or any licensing authority for re-consideration.5.The Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance.6.The Tribunal shall hear and determine matters referred to it expeditiously.13.The Tribunal referred to above is the Energy Tribunal and it will be seen that it is vested with original civil jurisdiction to hear disputes between a licensee and a third party or between licencees. The applicant is a licencee having been licenced to distribute power and the respondent is a third party. The dispute is whether or not the applicant has a wayleave to use the respondent’s land to lay electricity lines.14.Mr. Ochoki is however right that this court would have jurisdiction given the provisions of Article 162 (2) (b) of the Constitution which gives this court the power to hear disputes relating to the environment and land. The dispute here is over land and this court would have jurisdiction. We have to be careful when we say a court has no jurisdiction. It means that there is no law whatsoever that vests it with power to hear such dispute. This court certainly has power to hear a dispute such as that which has been presented here. It does not however mean that a court with jurisdiction must take up that jurisdiction. It can avoid jurisdiction and have the matter decided by other lesser institution following the doctrine of exhaustion.15.This doctrine was discussed in depth by a 5-Judge Bench in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR. The Court stated as follows:52.The question of exhaustion of administrative remedies 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. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (I E B C) ex parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution.”16.Equally the court of Appeal in the case of this is Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, stated that:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”17.Further the Court of Appeal in the case of Speaker of the National Assembly Vs. Karume [1992] KECA 42 (KLR) underscored the relevance of exhausting alternative dispute resolution mechanism created in law by stating;15.In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that Order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.”18.Thus where there is an alternative dispute resolution mechanism that has been established, it is now settled that parties need to first exhaust that path before coming to court. If those mechanisms were not available then this court could proceed to hear the dispute. It has not been shown that those alternative mechanisms do not exist or are ineffective so that the respondent can assert to have this court determine the case. In such instance this court would avoid exercising jurisdiction over the matter and have the dispute first be determined by those alternative mechanisms.19.For the above reasons, I find merit in this application. The result is that I proceed to strike out the case of the plaintiff. The plaintiff is advised to first exhaust the dispute resolution mechanisms set out in the Energy Act.” 34.It would follow that under the doctrine of exhaustion; this dispute ought not to have been filed before this Court. The Notice of Preliminary Objection is sustained. 35.As to costs the same lie at the discretion of this Court. They follow the event. The event is that the proceedings herein are struck out. The same are awarded to the Respondent. Determination 36.The Respondent’s Notice of Preliminary Objection dated 8th April, 2025 is sustained. The Applicant’s application by way of a Notice of Motion dated 4th April, 2025 is hereby struck out. 37.The costs of the Notice of Preliminary Objection dated 8th April, 2025 and the application by way of a Notice of Motion dated 4th April, 2025 are awarded to the Respondent. 38.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 14TH DAY OF MAY, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Miss Chemutai holding brief for Mr. Kiarie for the Applicant.N/A for the for the Respondent.Ms. Susan Nzioka - Court Assistant.