[2023] KEET 14 (KLR)

Kimata (Suing as the Legal Representative of the Estate of the Late Richard Muita Kabira) v Kenya Power & Lighting Company Limited & another (Tribunal Case EPA/E027 of 2022) [2023] KEET 14 (KLR) (8 February 2023) (Ruling)

Neutral citation: [2023] KEET 14 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Tribunal Case EPA/E027 of 2022

Kioko Kilukumi, Chair, D.K Mwirigi, Vice Chair, B.H Wasioya, D Jemator, F.S Ibrahim & F. M Kavita, Members

February 8, 2023

Between

Margret Wanjiru Kimata (Suing as the Legal Representative of the Estate of the Late Richard Muita Kabira)

Claimant

and

Kenya Power & Lighting Company Limited

1st Respondent

Kenya Electricity Transmission Company

2nd Respondent

Ruling

1. The Claimant is the bona fide owner of all that parcel of land known as Nyadarua/Matindiri/542 measuring approximately 4. 33 Hectares, having acquired the same as a beneficiary of her deceased husband, the late Richard Muita Kabira, vide Nakuru High Court succession cause No 768 of 2015.

2. The 1st and 2nd Respondents are bodies corporate registered under the provisions of The Company’s Act with their registered offices in Nairobi to, between them, carry out the functions of transmission, distribution and supply of electricity in various parts of Kenya.

3. The Claimant avers that on or about February 1, 2021, the 2nd Respondent under the instructions of the 1st Respondent encroached an area of approximately one (1) acre on the suit parcel of land and installed power lines and an electricity transformer without her consent.

4. The Claimant prays for judgement against the Respondents jointly and severally for:a.A declaration that the Respondents acts amount to illegal trespass on the plaintiff’s parcel of land known as Nyandarua/Matindiri/542. b.General damages for illegal trespass.c.Exemplary damages.d.Payment of Kshs 800,000/= being the value of the one (1) acre portion encroached by the Respondents.e.Interest on (d) above at market rates from February 1, 2021 till date of payment.f.Cost and interest of this suit.

5. The 2nd Respondent filed a preliminary objection dated October 17, 2022 seeking to have this matter struck out on the ground that this Tribunal lacks jurisdiction to hear and determine the claim pursuant to section 13(1) of the Environment and Land Court Act No 9 of 2011; Article 162 (2) (b) of theConstitution of Kenya, 2010; Section 101 of the Land Registration Act No 3 of 2012 and Section 150 of the Land Act No 6 of 2012.

6. Following the Preliminary Objection by the 2nd Respondent, which was supported by the 1st Respondent, the Tribunal directed all the parties to file their submissions regarding whether or not the Tribunal has jurisdiction to hear and determine the claim.

2nd Respondent’s Submission On Its Preliminary Objection 7. The 2nd Respondent submissions in support of its Preliminary Objection are set out in paragraphs 8 to 18 hereunder:

8. Jurisdiction is the authority of a court/tribunal to hear and determine matters before them. It is trite that the jurisdiction of any court/tribunal provides the foundation for its exercise of judicial authority in a matter.

9. As a general principle, where a court/tribunal has no jurisdiction, it has no basis for judicial proceedings, much less judicial decision or order. The applicable standard remains the statement of the Court of Appeal in the Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] KLR 1 where it was stated that:Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction, there would be no basis for a continuation of proceeding pending other evidence and a court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

10. This Honourable Tribunal derives its jurisdiction from the Energy Act, 2019. The Claimant’s case is a claim of trespass over parcel of land Nyandarua/Matindiri/542 and a claim for payment of Kshs 800,000/= being the value of the one (1) acre portion encroached by the Respondents. Section 175 of the Energy Act highlighting on payment of compensation provides that:If any difficulty or question arises as to the amount, entitlement to compensation or person entitled to compensation payable under this Act, the determination shall be made in accordance with the provisions of the relevant written law.

11. Pursuant to this section, and the Environment and Land Court Act No 9 of 2011, being one of the relevant written laws, Section 13 (1) of the Act vests original jurisdiction in hearing and determination of this matter under the Environment and Land Court. The Section stipulates that:1. The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with article 162(2)(b) of theConstitution 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—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.

12. Clearly, from the foregoing, the original jurisdiction to determine the instant dispute is vested in the Environment and Land Court. In AKM v NNN (2019) eKLR, the Honourable Judge in determining the jurisdiction of the Environment and Land Court stated as follows at paragraph 36:On the other hand, the jurisdiction of the ELC is limited by Article 162 (2) and (3) of theConstitution of Kenya and Section 13 (2) of the ELC Act No 9 of 2011. Article 162 (2) (b) states that ELC has the mandate to hear and determine disputes relating to use and occupation of, and title to, land. The provisions of Section 13 (2) of the ELC Act clearly gives power to ELC to hear and determine disputes relating to inter alia environment, land use planning, title, boundary disputes, land administration and management; choses in action or other instruments granting any enforceable interests in land, among other related issues.

13. Similarly, this Honourable Tribunal while dismissing a suit for want of jurisdiction in EPA/E018/2022, Maridadi Flowers Ltd v Kenya Electricity Transmission Co Ltd held:35. Despite the vast jurisdiction vested into the Energy and Petroleum Tribunal by Section 36 (1) of the Act, it is imperative to note that the claim before this tribunal extends outside the scope of the Energy and Petroleum Act as it involves enforceable interests in land.36. This matter being one of compensation emanating from the use of land clearly falls under the purview of the Land Act and therefore can only be heard and determined by the Environment and Land Court.37. Flowing from the foregoing analysis of the law, the facts and authorities, the conclusion becomes irresistible that this Tribunal lacks the Jurisdiction to hear and determine the claim before it.

14. It is clear that this Tribunal does not have jurisdiction to hear matters touching on enforceable interests in land and compensation, consequently, cannot entertain the Claimant’s claim of trespass and claim for compensation as a result of the alleged trespass.

15. Further, the Supreme Court in Samuel Kamau Macharia and another v Kenya Commercial Bank and 2 others, Application No 2 of 2011, pronounced itself on jurisdiction thus:“(68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …Where theConstitution exhaustively provides for the jurisdiction of a Court of Law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.

16. Considering the nature of the pecuniary jurisdiction and considering the amount of claim (800,000/=), a Magistrate Court gazetted to handle enforceable rights/interests in land can also (have) jurisdiction over this claim pursuant to Section 26 (3) of the Environment and Land Court Act, 2011 which provides:The Chief Justice may, by notice in the Gazette, appoint certain Magistrates to preside over cases involving environment and land matters of any area of the country.

17. On the jurisdiction of the Energy and Petroleum Tribunal, counsel submitted that Section 175 of the Energy Act provides the forum that has the appropriate jurisdiction to handle matters arising from wayleaves and rights of way whereby the same are for use for energy resources and infrastructure.

18. The 2nd Respondent prays that this Honourable Tribunal dismisses the Claimant’s claim with costs for want of jurisdiction over the nature of the claim.

19. The 1st Respondent did not file any submissions, but fully associated himself with those of the 2nd Respondent.

Claimant’s Submission 20. In rebuttal, counsel for the Respondent made the submissions set out in paragraphs 21 to 32 here below.

21. The provisions as cited by the 2nd Respondent are skewed to hold the prosecution of the suit in abeyance by misleading this honorable court and diverting course from the actual issue in dispute.

22. The Tribunal has competent and exclusive jurisdiction to entertain, adjudicate and preside over the matter to finality. The honorable Tribunal therefore derives its inherent powers to preside over the matter from sections 25 and 36 of the Energy Act, 2019.

23. Section 25 of the Act establishes the Energy and Petroleum Tribunal for purposes of hearing and determining disputes and appeals in accordance with the act or any other written law. In further relation to the jurisdiction of the Tribunal, section 36 of the Act provides as follows;36(1)The Tribunal shall have jurisdiction to hear and determine all matters referred to it, relating to energy and petroleum sector arising under the Act or any other Act.2. The jurisdiction of the Tribunal shall not include the trail 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 decision of the Authority and any other licensing authority and in exercise of its function may refer any matter back to the Authority or any licensing authority for 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.”

24. The Claimant in the spirit of upholding the provisions of the Energy Act exhaustively explored avenues of resolving the matter having filed the suit before the Energy Tribunal. In view of the above, it is clear that the mandate of the Energy and Petroleum Tribunal as regards civil matters relating to the energy and petroleum sector are vast thus the notice of preliminary objection is of no basis and ought to be dismissed.

25. In the case of Elijah Mutahi & 10 others v Kenya Power & Lighting Company Limited [2020] eKLR [2020] eKLR the learned presiding judge Otieno in reference to sections 25 and 36 of the Energy Act opined the following:“Since the Energy Act of 2019 under Section 25 as read together with Section 36 creates an exclusive jurisdiction on the disputes relating to energy and gives the tribunal original civil jurisdiction on any dispute between a licensee and a third party or between licensees and has power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance, I hereby refer this dispute to the Energy and Petroleum Tribunal established under Section 25 of the Energy Act, Act No 1 of 2019, to hear and determine the dispute within the framework of Section 36 of the Energy Act, No 1 of 2019. ”

26. In the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others(2015) eKLR the Court of Appeal for failing to adhere to the doctrine of exhaustion held that:“It is imperative that where a dispute resolution mechanism exists outside courts, the same should be exhausted before the jurisdiction of the courts is invoked. Courts ought to be … the 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 postponement of judicial consideration of matters to ensure that a party is first diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts.”

27. We wholly share in the findings of the learned judges as per the cited authorities. Having established the dispute falls within the Tribunal’s jurisdiction, we next address on whether the Tribunal can grant orders as sought by the Claimant.

28. Section 36 (5) provides that the Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance. It is clear in the pleadings filed that the redress sought by the Claimant falls within the purview of the Tribunal.

29. There is reason that the Tribunal is vested with original and civil jurisdiction in energy disputes and it is paramount that the above captioned powers be adhered to.

30. In the case of Mutanga Tea and Company Limited v Shikira Limited & Anor (2015) eKLR the Court of Appeal in addressing the importance of complying and adhering to alternative dispute resolution mechanisms made reference to the case of Rich Productions Ltd v Kenya Pipeline Company & Anor, Petition 173 of 2014; where the High Court explained as follows:“The reason why theConstitution and the law establish different institutions and mechanisms for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and the jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2nd Respondent, such supervision is limited in various respects, which I need not go into here. Suffice to say that it (the court) cannot exercise such jurisdiction in circumstances where parties before it seek to avoid mechanisms and processes provided by law, and convert the issues in dispute into constitutional issues when it is not.”

31. In light of the forgoing, we submit that the Respondents’ …. business of transmission of electricity to members of the public is technical in nature, essential and one that requires urgent resolution. It is in recognition of this that the Act vests original jurisdiction to the Energy and Petroleum Tribunal that has the technical capacity and ability to expediently resolve the dispute.

32. We pray that the preliminary objection be dismissed with costs

Issues For Determination 33. Whether only the Environment and Land Court, to the exclusion of the Energy and Petroleum Tribunal, has the jurisdiction to hear this matter.

Analysis And Determination 34. It is an elementary principle in law that a Court or a Tribunal cannot adjudicate on matters in which it lacks jurisdiction. The Jurisdiction of the Courts is derived from the Constitution or Statute. If a Court finds that it lacks jurisdiction to hear and determine a matter, it is obligated to halt the proceedings. It cannot expand or arrogate to itself jurisdiction which is not conferred upon it by law. Mativo J while explaining the importance of jurisdiction in the case of Chama cha Uzalendo & 4 others v Registrar of Political Parties & 2 others held that;“Jurisdiction is to a Court, what a gate or a door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that it has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper, as vigilant as he is always, will readily intercept and query all persons who intrude into his domain. To be able to ventilate a grievance, a prospective litigant has to ensure that he addresses his complaint to the competent Court. That is so for an incompetent court will have no jurisdiction to his entreaty.”

35. In RW v JMN [2022]eKLR the learned judge stated that;“Jurisdiction is everything and this court should first establish the same before it can proceed further in analyzing and making a determination of the Claimant’s clam.”

36. Further in the case of Republic v Chief Land Registrar & another [2019] eKLR the court stated that;“In general a court is bound to entertain proceedings that fall within its jurisdiction. Put differently, a court has no inherent jurisdiction to decline to entertain a matter within its jurisdiction. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the fact exist. Perhaps I should add that where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.[6] A court’s jurisdiction flows from either the Constitution, legislation or both or by principles laid out in judicial precedent.[7]A court of law can only exercise jurisdiction as conferred by the Constitution or other written laws.”

37. The Claimant’s position is that the Energy and Petroleum Tribunal has jurisdiction over this matter. The 2nd Respondent’s contention on the other hand is that the matter before this Tribunal falls within the jurisdiction of the Environment and Land Court.

38. The Claimant avers that the Tribunal has the relevant jurisdiction to hear and determine this matter pursuant to Section 36 (1) and (3) of the Energy Act, 2019.

39. The jurisdiction of this Tribunal is donated by Section 36 of the Act which states that;a.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.b.The jurisdiction of the Tribunal shall not include the trial of any criminal offence.c.The Tribunal shall have original civil jurisdiction on any dispute between a licensee and a third party or between licensees.d.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.e.The Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance.

40. We shall start by looking at the Environment and Land Court Act No 9 of 2011 on which the 2nd Respondent relied to submit that the Energy and Petroleum Tribunal does not have jurisdiction to hear and determine the dispute before it. Section 13 of the said Act reads: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 theConstitution 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 theConstitution, 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 resources;b.relating to compulsory acquisition of land;c.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 theConstitution.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.7In 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.

41. Considering subsection (4) above, it is clear that subordinate courts and local tribunals can hear and determine matters falling within the jurisdiction of the Environment and Land Court, which decisions are appealable to the ELC. This is consistent with:a.Section 150 of the Land Act which reads:150. Jurisdiction of the Environment and Land CourtThe Environment and Land Court established in the Environment and Land Court Act and the subordinate courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.b.Section 36 (1) (a) of the Energy Act which empowers the Tribunal to hear and determine all matters referred to it, relating to the energy and petroleum sector arising under this Act or any other Act.

42. As stated in the case of Republic v Chief Land Registrar & another [2019] eKLR“In general a court is bound to entertain proceedings that fall within its jurisdiction. Put differently, a court has no inherent jurisdiction to decline to entertain a matter within its jurisdiction."

43. It is noteworthy that energy infrastructure cannot be installed, except on land of all descriptions regardless of ownership and/or occupation, subject to seeking and obtaining consent of the owner or occupier of the land as set out in Sections 171 and 173 of the Energy Act.

44. Licensees in control of such infrastructure will always need unhindered access to land owned or occupied by other persons for purposes of:a.ascertaining suitability of the land for exploitation of energy resources and development of energy infrastructure, including but not limited to laying or connecting electric supply lines, petroleum or gas pipelines, or drilling exploratory wells as set out in Section 171 (1) (a) of the Energy Act, andb.operating, inspecting or repairing the infrastructure installed thereon as set out in Section 176 (1) of the Energy Act.

45. Such access may give rise to disputes that need to be resolved expeditiously to avoid prolonged delays in development of infrastructure and/or interruptions of energy supply that have the capacity to negatively impact the socio-economic development and well-being of the nation.

46. For the expeditious resolution of such disputes the Energy Act provides for the Energy and Petroleum Authority to adjudicate in the first instance. Where any party is dissatisfied by the decision of the Authority, it may appeal to the Tribunal as set out in the Energy Act and other written laws; those other laws include the Land Act as well as the Environment and Land Court Act.

47. Licensees in control of infrastructure and owners/occupiers of land on which the infrastructure is laid are in continuing relationships, which should not be jeopardized by lack of good faith and acting in ways that lead to avoidable disputes. An example of such relationships is the provision for agreement between the parties for some of the maintenance to be done by owners/occupiers of the land on which the infrastructure is laid, such as lopping of trees and hedges, as set out in Section 180 of the Energy Act, which reads:180. Power to lop trees and hedges1. Where any tree or hedge obstructs or interferes with the construction by a licensee of any energy infrastructure, or interferes or is likely to interfere with the maintenance or working of any such infrastructure, owned by any licensee, such licensee shall give a seven days' notice to the owner or occupier of the land on which the tree or hedge is growing, requiring the person to lop or cut it so as to prevent the obstruction or interference of the infrastructure, subject to the payment by such licensee of the expenses reasonably incurred by the owner or occupier of the land in complying with the notice:Provided that in any case where such a notice is served upon an occupier who is not the owner of the land on which the tree or hedge is growing, a copy of the notice shall also be served upon the owner thereof, if his address is known.2. If within fourteen days from the date of giving such notice the owner or occupier of the land on which the tree or hedge is growing gives a counter-notice to the licensee objecting to the requirements of the notice, the matter shall, unless the counter-notice is withdrawn following consultations between the licensee and the owner or occupier, be referred to the Authority for determination and the Authority may, after giving the parties an opportunity to be heard, make such orders as it thinks just, and any such order may empower the licensee, after giving a seven day prior notice to any such person by whom the counter-notice was given of the commencement of the work as the order may direct, to cause the tree or hedge to be lopped or cut, and may determine any question as to what compensation, if any, and expenses are to paid:Provided that any party aggrieved by any decision of the Authority with regard to compensation may within thirty days after being notified of such decision appeal to the Tribunal.3. The licensee shall issue instructions to his servants and agents with a view to ensuring that trees and hedges shall be lopped or cut in a way that as little damage as possible is done to trees, fences, hedges and growing crops, and shall cause the boughs lopped to be removed in accordance with the directions of the owner or occupier, and shall make good any damage done to land.4. Any compensation or expenses payable to the owner or occupier by the licensee under this section shall be a civil debt recoverable summarily.5. Where it is necessary to fell any trees, this section shall apply to the felling of trees mutatis mutandis as it applies to the lopping of trees.6. This section shall apply to energy infrastructure owned or to be constructed by any licensee regardless of the type of licence held.

48. Energy and petroleum infrastructure is by and large laid out in land, that may be privately or publicly owned. It may also be owned by the community.

49. A legal analysis of the provisions of the relevant constitutional provisions; the Energy Act, the Land Act and the Environment and Land Court Act, lead us to conclude that there exists a jurisdictional intersection shared by the Energy and Petroleum Tribunal on one hand and the Environment and Land Court on the other.

50. The particular dispute with its unique and peculiar facts will ultimately determine which adjudicatory body, will in the totality of the circumstances of the case, be most appropriate to determine the dispute. Other relevant facts to be taken into account will include the requisite expertise and technical know-how of the respective adjudicatory bodies.

51. On matters of wayleaves, where energy infrastructure is erected on land, such as the one before us, the Environment and Land Court has explicitly acknowledged the jurisdiction of this Tribunal. In the Thika ELC Petition No E008 of 2021 of Jane Wawira Njue v Kenya Electricity Transmission Company Limited, BM Eboso, J, stated that:-“This court is therefore in agreement with counsel for the respondent that this being a dispute about compensation in relation to electricity transmission lines laid over the petitioner’s land, the primary adjudicatory body to hear and determine the dispute is the Tribunal established by Parliament under Section 25 of the Energy Act. Clothing this dispute as a constitutional petition does not in any way divest that jurisdiction from the Tribunal”

Disposition 48. From the foregoing, the tribunal:a.Finds that the preliminary objection is without merit and is hereby dismissed.b.Directs that the matter be and is hereby referred to the Energy and Petroleum Regulatory Authority for hearing and determination, in the first instance.c.Makes no orders on costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF FEBRUARY 2023. In the Presence of:.........................MR. KIOKO KILUKUMI, SC Chairperson.........................MS. DORIS KINYA MWIRIGI Vice Chairperson.........................ENG. BUGE HATIBU WASIOYA Member.........................MS. DOROTHY JEMATOR Member.........................MR. FEISAL SHARIFF IBRAHIM Member.........................ENG. FIDELIS MULI KAVITA MemberSIGNED BY: KIOKO KILUKUMI