https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4941

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCL PETITION NO. E008 OF 2024** **JOHN KIMEU MUEMA and VERONICA MUKELI PETER** **(Both suing as the administrators of** **the estate of MUMBI MUEMA MULWA** **(Deceased)............................................................................PETITIONER** **VERSUS** **KENYA POWER AND LIGHTING COMPANY** **LTD...................................................................................RESPONDENT** **RULING** **Introduction** 1. Before the Court is a Preliminary Objection dated 30th June 2026 by which the Respondent challenges the jurisdiction of this Court to hear and determine the Petition. 2. The Respondent contends that the dispute falls within the dispute resolution framework established under the Energy Act, 2019 and the Energy (Complaints and Disputes Resolution) Regulations, 2012. It therefore seeks an order striking out the Petition together with all consequential orders for want of jurisdiction. 3. The Petitioners oppose the Preliminary Objection through the Replying Affidavit of Dennis Mwirigi, sworn on 10th July 2026. They argue that the Petition raises constitutional and land-related issues within this Court's jurisdiction, and that the statutory dispute resolution mechanism under the Energy Act does not apply to this dispute or remove the Court's constitutional jurisdiction. **Background** 1. The Petition was instituted on 18th September 2024 by **John Kimeu Muema** and **Veronica Mukeli Peter,** in their capacity as the administrators of the Estate of **Mumbi Muema Mulwa** (Deceased), against the **Kenya Power and Lighting Company Limited.** The Petition relates to L.R. No. Mavoko Town Block 3/1921 and challenges the Respondent's alleged entry onto the property, erection and maintenance of a high-voltage electricity transmission line, and continued occupation of a wayleave without the registered proprietor's consent or payment of compensation. 2. The Petitioners allege that the Respondent failed to comply with constitutional and statutory requirements for acquiring wayleaves, thereby violating their rights under Articles 40 and 47 of the Constitution. 3. Based on these allegations, the Petitioners seek declarations that the Respondent violated their constitutional rights and that any purported wayleave consent or acquisition over the property is unlawful, null and void. They also seek compensation, special, general, and exemplary damages, costs and any further relief the Court deems appropriate. 4. Pursuant to the directions of the Court, the Preliminary Objection application was canvassed by way of written submissions, which have been duly considered. **The Parties' Positions** 1. The Petitioners argue that the Preliminary Objection does not raise a pure point of law as defined in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* [1969] EA 696,** since its determination requires the Court to examine the dispute's nature, alleged constitutional violations and reliefs sought. They further assert that the Petition raises constitutional questions within this Court's jurisdiction under Articles 22, 23, and 162(2)(b) of the Constitution and section 13 of the Environment and Land Act, 2011. 2. The Petitioners also submit that neither the Energy Act, 2019 nor the Energy (Complaints and Disputes Resolution) Regulations, 2012 grant the Energy and Petroleum Regulatory Authority jurisdiction to determine constitutional questions, interpret the Bill of Rights, or provide the constitutional remedies sought. They argue that the doctrine of exhaustion does not apply because the statutory mechanism cannot offer an effective remedy in this case. **The Respondent's Position** 1. The Respondent submits that the Preliminary Objection raises a pure point of law on jurisdiction and is properly before the Court. It contends that the dispute concerns the acquisition, existence, and regulation of an electricity wayleave, which falls within the dispute resolution framework established by the Energy Act, 2019 and the Energy (Complaints and Disputes Resolution) Regulations, 2012. 2. The Respondent further argues that Parliament established a specialized statutory mechanism for disputes under the Energy Act, which the Petitioners were required to exhaust before approaching this Court. It maintains that the Petitioners have not pleaded or demonstrated exceptional circumstances justifying departure from the doctrine of exhaustion under sections 9(2) and (3) of the Fair Administrative Action Act. 3. The Respondent maintains that the constitutional issues raised do not exempt the Petitioners from the statutory dispute resolution process. It therefore asks the Court to uphold the Preliminary Objection and strike out the Petition with costs. **Issues for Determination** 1. Having considered the Preliminary Objection, the parties' affidavits and the written submissions, the issue falling for determination is whether this Court has jurisdiction to hear and determine the Petition. **Analysis and Determination** 1. Indubitably, a proper Preliminary Objection must be based entirely on a point of law, free from facts that require proof or evidence for their determination. In any case where a Court is required to explore any such facts, the same cannot be raised as a preliminary objection. 2. The *locus classicus* on the nature and scope of a preliminary objection, ***Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696*** at 700 states: ***“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit or to refer the dispute to litigation.”*** 1. In the case of ***Quick Enterprises Ltd. Vs. Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999****,* the Court held that: ***“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.”*** 1. In the case of ***Oraro vs Mbaja (2005) 1KLR 141****,* the Court held that: *“****Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence.”*** 1. In the instant case, the Respondent's Preliminary Objection is founded on the doctrine of exhaustion. Where a party contends that a suit has been instituted without first invoking a mandatory statutory dispute resolution mechanism, the objection raises a jurisdictional question capable of determination as a pure point of law, provided it does not require the Court to resolve disputed facts. 2. The preliminary objection before the Court turns on whether the Petitioners were required, in the first instance, to invoke the dispute resolution mechanism established under the Energy Act before approaching this Court. That question concerns the competency of the proceedings and falls for determination based on the pleadings and the applicable law. I am therefore satisfied that the Respondent's objection raises a proper preliminary objection within the meaning of *Mukisa Biscuit*. 3. Having found that the Preliminary Objection is properly before the Court, I now turn to consider its merits. The Respondent contends that the Petition offends the doctrine of exhaustion because the dispute ought, in the first instance, to have been presented before the dispute resolution mechanism established under the Energy Act, 2019. 4. Jurisdiction is everything. It is the lifeblood of any judicial proceeding. In ***Owners of the Motor Vessel “Lillian” (S) versus Caltex Oil (Kenya) Ltd [1989] KLR 1,*** it was held as follows: ***“Jurisdiction is everything. Without it, a court has 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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. ………..*** ***“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court had 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 facts exist. 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.”*** 1. The jurisdiction of this Court is derived from Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. Article 162(2)(b) establishes the Environment and Land Court with jurisdiction to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. Section 13(2) of the Environment and Land Court Act further empowers this Court to hear and determine disputes relating to environmental planning and protection, land administration, and any other dispute relating to land. 2. The Respondent does not dispute that this Court is vested with jurisdiction over constitutional and land disputes. Its objection is that the Petitioners ought, in the first instance, to have invoked the dispute resolution mechanism established under the Energy Act before approaching this Court. 3. That contention brings into focus the doctrines of exhaustion and constitutional avoidance. The doctrine of exhaustion is now firmly embedded in our jurisprudence. It is founded on the principle that where Parliament has established a specialized dispute resolution mechanism, that mechanism should ordinarily be invoked before a party resorts to the courts. In ***Speaker of the National Assembly v Karume [1992] KLR 21,*** the Court held as follows: ***“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.”*** 1. The rationale for the doctrine was further explained by the Court of Appeal in ***Geoffrey Muthiga Kabiru & 2 others vs Samuel Munga Henry & 1756 others [2015] eKLR,*** the Court of Appeal held 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. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”*** 1. Elaborating on the doctrine, the Court in ***William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR*** held as follows: ***“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.”*** 1. Closely related to the doctrine of exhaustion is the doctrine of constitutional avoidance. This doctrine asserts that the Constitution should not be invoked to resolve disputes that are not Constitutional controversies, that is to say, matters that may be resolved by application of ordinary legislation, regulatory regimes or established legal principles, the Court must avoid using the Constitution in resolution of such matters. 2. The Supreme Court in ***Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others* [2014] eKLR** explained the doctrine in the following terms: ***"[256] The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:*** ***“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”*** 1. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in ***Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (supra)*** (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. 2. I have read these cases carefully and considered the salutary decisional rule of law they announce. The existence of the doctrines is not in question. The question is whether they apply to the present case. 3. The Respondent's objection is that the Petitioners were required, in the first instance, to invoke the dispute resolution mechanism established under the Energy Act before approaching this Court. The Petitioners contend that the statutory mechanism is inapplicable because the Petition raises constitutional questions which it is not competent to determine. 4. The question, therefore, is whether the dispute resolution mechanism established under the Energy Act, 2019 is competent to determine the dispute so presented and to grant the principal reliefs sought by the Petitioners. 5. There can be no dispute that the Energy Act, 2019 establishes a comprehensive statutory framework for the regulation of the energy sector. Sections 10 and 11 establish the functions of the Energy and Petroleum Regulatory Authority (EPRA), while sections 36 and 37 establish the Energy and Petroleum Tribunal and confer jurisdiction to determine disputes arising under the Act. Further, Regulation 4 of the Energy (Complaints and Disputes Resolution) Regulations identifies disputes relating to wayleaves, easements and rights of way as falling within that statutory framework. 6. I have carefully considered the Petition, the supporting affidavit and the reliefs sought. The Petition is not confined to the existence of an electricity wayleave or the exercise of the Respondent's statutory mandate under the Energy Act. Instead, it challenges the legality of the Respondent's entry onto the suit property, the acquisition and continued occupation of the impugned wayleave, the alleged failure to comply with the statutory procedure governing its acquisition, and the alleged violation of the Petitioners' rights under Articles 40 and 47 of the Constitution. 7. The Petitioners therefore seek declarations that the Respondent's actions were unconstitutional and unlawful, that the acquisition of the wayleave is null and void, as well as constitutional compensation, general and exemplary damages, and other consequential relief. These issues and reliefs define the true nature of the dispute before the Court. 8. Having considered the nature of the dispute and the reliefs sought, I am not persuaded that the statutory dispute resolution mechanism under the Energy Act is competent to determine the Petition in its entirety. The Petition raises questions about the legality of the wayleave acquisition process and alleged violations of the Petitioners' constitutional rights, which are central to the case. 9. This conclusion is consistent with the decision in ***Rachael Nelima Wanyonyi v Kenya Power Co. Ltd* [2018] KEELC 2049 (KLR),** where, in dismissing a similar preliminary objection, the Court held: ***"The circumstances in this Petition are different in that by failing to issue a notice to the Petitioner as required by the mandatory provisions of Section 46 of the Energy Act, the Petitioner had no opportunity either to assent to the Respondent's proposal as required by Section 47 of the Act or object thereto as required by Section 48 of the Act. What the Respondent did therefore took this dispute out of the purview of the Commission as envisaged under the provisions of Sections 48, 49 and 50 of the Energy Act and therefore properly invoked this Court's jurisdiction."*** 1. I agree with the above reasoning. When the legality of the statutory process for acquiring a wayleave is challenged and constitutional relief is sought, the dispute extends beyond the ordinary regulatory jurisdiction of the Energy Act. 2. The Petitioners seek declarations of violations of their rights under Articles 40 and 47 of the Constitution, declarations challenging the legality of the Respondent's acquisition and occupation of the wayleave, constitutional compensation, and damages. These issues require the Court to address the constitutional questions raised in the Petition. 3. In the circumstances, I am not persuaded that the dispute resolution mechanism under the Energy Act provides an adequate and effective forum for resolving the entire dispute. The Petition raises constitutional questions that properly invoke this Court's jurisdiction. Therefore, the doctrines of exhaustion and constitutional avoidance do not prevent the Court from determining the Petition. 4. Accordingly, I find that the Preliminary Objection dated 30th June 2026 lacks merit and is hereby dismissed. 5. Consequently, I make the following orders: 6. ***The Notice of Preliminary Objection dated 30th June 2026 is hereby dismissed.*** 7. ***The Respondent shall bear the costs of the Preliminary Objection.*** It is so ordered. **Delivered and Dated at Machakos this 30th day of July, 2026.** **HON. J. N. KUYIONI** **JUDGE** **30.07.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Catherine Court Assistant. Ms. Mumbi holding brief for Mr. Murigi for the Petitioners. Ms. Mulela for the Respondent.