[2025] KEHC 4577 (KLR)

Kenya Power and Lighting Company Limited v Ngoko (Civil Appeal E060 of 2023) [2025] KEHC 4577 (KLR) (3 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4577 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E060 of 2023

WA Okwany, J

April 3, 2025

Between

Kenya Power and Lighting Company Limited

Appellant

and

Joshua Ongeta Ngoko

Respondent

(Being an Appeal from the Ruling in the Chief Magistrate’s Court at Nyamira in CMCC No. 70 of 2019 delivered by Hon. C.I. Agutu delivered on 15th November 2023)

Judgment

1. The Respondent herein sued the Appellant before the trial court vide Plaint dated 8th September 2022. The Respondent’s case was that he is the beneficial owner of plot No. Central Kitutu/Bogetaorio/719 that is registered in the name of his father Evanson Ngoko Kenyuri (deceased) where he had planted 15,000 blue gum trees which he intended to sell upon maturity after 10 years. The Respondent averred that, on or about 7th August 2015, the Defendant’s servants/agents cut down his trees without his knowledge or permission and erected a power line right in the middle of his farm thereby occasioning him loss and damage. The Respondent/Plaintiff sought the following reliefs in the Plaint: -a.Special Damages in the sum of Kshs. 2,611,031/= being the amount spent on professional fees and assessed damages and other expenses.b.General Damages for pain and agony, inclusive of mental torture the Plaintiff underwent as a result of the Defendant’s actions.c.General Damages for loss of user and an order for re-routing of the power line running over the parcel Plot No. Central Kitutu/Bogetaorio/719 from its current position to the boundary and/or hedges of the said parcel of land at the Defendant’s costs.d.General Damages for trespass.e.Any other remedies the court may deem fit to grant.f.Costs of the suit plus interests.

2. The Appellant/Defendant filed a Notice of Preliminary Objection in response to the Plaint in which it challenged the trial court’s jurisdiction. The Appellant’s case was that Section 36(1), (3) and (5) of the Energy Act 2019 and Rules 2 and 4 of the Energy (Complaints and Dispute Resolution) Regulations 2012 vests the jurisdiction of the matter to the Energy and Petroleum Tribunal. The Appellant urged the trial court to strike out the suit with costs on the basis that it was an abuse of the court’s process.

3. In a Ruling delivered 15th November 2023, the trial court dismissed the Preliminary Objection and set the main suit for hearing.

4. Aggrieved by the trial court’s said Ruling, the Appellant filed the present Appeal vide Memorandum of Appeal dated 30th November 2023 wherein it enumerated the following grounds of appeal: -1. The Learned Magistrate erred in law and in fact in failing to hold that the Appellant had made out a proper objection against the claim by the Respondent.2. The Learned Magistrate erred in law and in fact by dismissing the Notice of Preliminary Objection without giving any reason(s) to back up the said decision.3. The Learned Magistrate misdirected herself in dismissing the Notice of Preliminary Objection and arrogating herself jurisdiction she did not have.4. The Learned Magistrate misdirected herself in failing to hold that the Energy and Petroleum Tribunal is seized with jurisdiction to handle the instant suit.5. The Learned Magistrate erred in law by failing to balance the interests of justice in the circumstances.

5. The Appeal was admitted for hearing on 16th October 2024 when directions were issued that it will be canvassed by way of written submissions.

The Appellant’s Submissions 6. The Appellant submitted that the decision by the trial court to dismiss the Preliminary Objection was not informed by any sound legal analysis of the issues and was arrived at without due regard to the relevant applicable laws. It was submitted that the case falls within the purview of the Energy and Petroleum Tribunal as provided under the Energy Act and the Energy (Complaints and Dispute Resolution) Regulations of 2012.

7. Reference was made to the Supreme Court’s decision in the case of Samuel Kamau Macharia and Another vs. Kenya Commercial Bank Limited & 2 Others (2012) eKLR where it was held that the court cannot entertain any proceedings without jurisdiction and cannot expand its jurisdiction through judicial craft or innovation since jurisdiction goes to the very heart of a matter and cannot be considered as a mere procedural technicality. The Appellant also cited Section 36 of the Energy Act which outlines the tribunal’s jurisdiction and Rule 4 of the Energy (Complaints and Dispute Resolution) Regulations of 2012 which sets out the nature of complaints to be dealt with by the tribunal.

8. It was submitted that courts have severally held that where the law grants jurisdiction to other tribunals, the courts ought to allow such tribunals to exercise their mandate. The cases of Royal Reserve Management Company Limited vs. Kenya Power & Lighting Company Ltd (2017) eKLR and Njue vs. Kenya Electricity Transmission Company Ltd, ELC Petition No. E008 of 2021 (2022) KEELC 14430 KLR were cited in this regard.

9. The Appellant urged the Court to allow the appeal and set aside the Ruling of the trial court.

The Respondent’s Submissions 10. The Respondent submitted that this case is simply a private land owner’s claim for compensation for the damaged trees and does not fall under Section 36 of the Energy Act 2019 which limits the jurisdiction of the Energy and Petroleum Tribunal to the Energy and Petroleum sector.

11. It was submitted that the case revolves around trespass to land which is an issue that the trial court has the jurisdiction to determine. The Respondent cited Section 13 of the Environment and Land Act which confers jurisdiction over such matters to the Environment and Land Court (ELC) as provided under Article 162 of the Constitution and argued that the claim fell within the jurisdiction of the Environment and Land Court and not this Court.

12. The duty of a first appellate court was discussed in the case of Kenya Ports Authority vs. Kusthon (Kenya) Limited 2000 2 EA, 212 where the Court of Appeal held, inter alia, that:-“On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

13. I have considered the record of appeal and the parties’ rival submissions. I find that the main issues for determination: -i.Whether this Court has jurisdiction over this Appeal.ii.Whether the Appeal is merited.

Jurisdiction 14. It is trite that jurisdiction flows from either the Constitution or Statute. (See Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (supra)).

15. Article 165 of the Constitution stipulates as follows: -(3)Subject to clause (5), the High Court shall have—a.unlimited original jurisdiction in criminal and civil matters;b.jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;c.jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;d.jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—i.the question whether any law is inconsistent with or in contravention of this Constitution;ii.the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;iii.any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; andiv.a question relating to conflict of laws under Article 191; ande.any other jurisdiction, original or appellate, conferred on it by legislation.(4)Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.(5)The High Court shall not have jurisdiction in respect of matters—a.reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; orb.falling within the jurisdiction of the courts contemplated in Article 162(2).(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

16. Article 162 of the Constitution provides as follows: -(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations; and(b)the environment and the use and occupation of, and title to, land.

17. Section 13 of the Environment and Land Court Act states as follows on the jurisdiction of the Environment and Land Court: -13. Jurisdiction of the Court1. The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.2. In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—a.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resourcesb.relating to compulsory acquisition of landc.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.any other dispute relating to environment and land.3. Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.4. In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.5. In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including—a.interim or permanent preservation orders including injunctions;b.prerogative orders;c.award of damages;d.compensation;e.specific performance;f.restitution;g.declaration; orh.costs.

18. I note that the dispute herein stems from the claim that Appellant trespassed onto the Respondent’s land and damaged his trees. In my humble view the claim falls for appeal before the Environment and Land Court as provided under Section 13 (1), (2) (a) and (4). It is my finding that this Court lacks jurisdiction to determine the present appeal. This finding is anchored on the determination in the oft cited case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where it was held that: -“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

19. Having found that this court lacks the jurisdiction to entertain this suit, I find that it is not necessary to delve into the merits of the instant appeal which I hereby strike out with no orders as to costs.

20. The Respondent is at liberty to file the appeal before the appropriate court vested with jurisdiction over the issues raised on appeal.

21. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 3RD DAY OF APRIL 2025. W. A. OKWANYJUDGE