Mohamed v Kenya Urban Roads Authority & another (Land Case E082 of 2025) [2026] KEELC 3656 (KLR) (16 June 2026) (Ruling)

Mohamed v Kenya Urban Roads Authority & another (Land Case E082 of 2025) [2026] KEELC 3656 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3656 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Land Case E082 of 2025 AY Koross, J June 16, 2026 Between Muhsin Ibrahim Mohamed Plaintiff and Kenya Urban Roads Authority 1st Defendant Kenya Power & Lighting Company Ltd 2nd Defendant Ruling 1.This is a ruling in respect of the notice of preliminary objection (PO) filed by the 2nd defendant dated 7 January 2026, in which the following point of law is raised:This Honourable Court lacks jurisdiction to hear and determine this dispute and suit against the 2nd defendant, and all consequential orders should be struck out with costs, as they offend the provisions of Sections 3(1); 10; 11(e), (f), (i), (k) & (l); 23; 24; 36; 40; 42 and 224(2)(e) of the Energy Act, 2019, together with Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012, as read together with 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 Administrative Action Act, 2015. 2.All parties agreed to canvass the PO by written submissions. In compliance, Ms. Oscar Otieno & Co. Advocates for the plaintiff filed his submissions dated 10 April 2026, and counsel Ms. Ann Mulela for the 2nd defendant filed its submissions dated 12 April 2026. As for the 1st defendant, its counsel, Mr. Kamau, informed the court on 10 April 2026 that his client supported the PO. Hence, having carefully considered the PO, the rival submissions, the legal framework, and prevailing jurisprudence, including that relied upon by counsel, the key issue for determination is whether the PO meets the legal threshold and, if so, whether the grounds are merited. We proceed. 3.In regards to the first limb, the well-cited decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696 has long established the tests that a PO must satisfy, and it is vital to reaffirm the relevant principles derived from the landmark case, which articulated that:“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 to refer the dispute to arbitration … 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 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.” 4.In affirming Mukisa Biscuit (Supra), the Supreme Court of Kenya in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] KESC 23 (KLR) emphasised the following on the threshold of a PO: -“Thus a preliminary objection may only be raised on a “pure question of law”. 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, as they are prima facie presented in the pleadings on record.” 5.Thus, based on these principles, when addressing this issue, the court will inquire whether the points of law are clear; whether the facts are settled and correct; do not necessitate further ascertainment; and whether the court is not being asked to exercise its prudent discretion. Accordingly, having considered the grounds of the PO that question this court's jurisdiction, this court determines that the legal issues concerning its jurisdiction are purely legal matters that may resolve the entire suit. Furthermore, it is now settled that jurisdiction is everything, and without it, the court must put down its tools. Having established that the PO has met the threshold, we will now delve into the second limb and establish if it is merited. 6.In its submissions, the 2nd defendant contends that Sections 2, 36(3), and 37 of the Energy Act, along with the Third Schedule thereof, exclude this court’s jurisdiction to hear the matter and asserts that the doctrine of exhaustion is applicable in this case. Conversely, the plaintiff contends that, even if such jurisdiction were to be acknowledged, as it even lodged a complaint with one of the adjudicative bodies established under the Energy Act, the jurisdiction of these bodies was limited. Thus, it is necessary to examine the statutory provisions. 7Section 11 (i) of the Act creates the Energy and Petroleum Regulatory Authority (EPRA), which permits it to handle complaints, and it provides as follows on its mandate to adjudicate disputes:“investigate and determine complaints or disputes between parties over any matter relating to licences and licence conditions under this Act.” 8.If EPRA’s decision aggrieves a party, that party may, under Section 24 thereof, appeal to the Energy and Petroleum Tribunal (EPT), which has jurisdiction as envisaged under Sections 25 and 36. These Sections state that:Section 24:“(1)A person aggrieved by a decision of the Authority may appeal to the Tribunal within thirty days of receipt of the decision.(2)Notwithstanding subsection (1), the Tribunal may entertain an appeal after the expiry of the thirty-day period if it is satisfied that there was sufficient cause for not filing it within that period.”Section 25:“There is established the Energy and Petroleum Tribunal, hereinafter referred to as "the Tribunal", for the purpose of hearing and determining disputes and appeals in accordance with this Act or any other written law.”Section 36:“(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.” 9.If still dissatisfied with EPT’s decision, a party can appeal to the superior courts, including this court, under Section 37(3), which provides:“Any person aggrieved by a decision of the Tribunal may, within thirty days from the date of the decision or order, appeal to the High Court.” 10.In accordance with the provisions of Article 162(2) of the Constitution and Section 13 of the Environment and Land Court (ELC) Act, this court has jurisdiction over matters relating to the environment and the use and occupation, and title to land, and thus, it would ordinarily have jurisdiction to hear and determine this case, which raises the claim of trespass. However, other statutory adjudicative bodies also have jurisdiction to hear and determine particular segments of the claim. 11.In this case, the 2nd defendant asserts that it possesses a license, presumably one related to renewable energy as envisaged by Part IV of the Act. Given that the plaintiff’s claim shows that the dispute pertains to the transmission and distribution of electricity by the 2nd defendant that eventually led to trespass on Mavoko Town Block 2/4121 (suit property), it accordingly follows that when the 2nd defendant executes its mandate under this Act, as contemplated by Section 132(2), it is required to comply with the applicable laws governing the development, building, operation, or maintenance of the said undertaking. 12.One such requirement of the law is that, since the alleged suit property is private land, the defendants were expected not to interfere with the plaintiff’s alleged land, as he enjoys protection under Article 40 of the Constitution. 13.Nevertheless, the presence of an alternative dispute resolution mechanism under the Act only delays the need to invoke the court's jurisdiction but does not eliminate the court's authority. In fact, having such mechanisms often makes the court the last resort rather than the first point of contact. Pointedly, there are exceptions to the doctrine of exhaustion. Our courts are abounding with jurisprudence on this. In Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR), the persuasive decision in highlighting exceptions to the doctrine of exhaustion, stated as follows: -“ 60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised. 61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.” 14.In a more recent Court of Appeal decision of Civil Appeal No. E160 of 2025 Claire Kubochi Anami & Others Vs County Executive Committee Member (CECM) Built Environment And Urban Planning, Nairobi City County & 20 Others, the court buttressed the doctrine of exhaustion and its exceptions thus: -“In our view, the doctrine of exhaustion serves an important constitutional function. It promotes institutional comity by recognizing the legislature’s intent that certain technical disputes be resolved in specialized fora. It enhances efficiency by allocating cases to bodies with subject-matter expertise. This Court has consistently reaffirmed that principle, most famously in Speaker v Karume (supra), Geoffrey Muthinja (supra) and Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR. We reaffirm the general principle: where Parliament has prescribed specialized fora and a clear path of review, parties must ordinarily exhaust those remedies. That discipline respects legislative design, leverages technical expertise, and refines records for judicial review.However, our jurisprudence has equally recognised that exhaustion is not an inflexible rule. As the High Court observed in William Ramogi (supra), courts may intervene where statutory mechanisms are plainly inadequate to deal with constitutional claims, or where insistence on exhaustion would result in a denial of justice. Differently put, the exhaustion doctrine is not an iron cage. Courts retain a narrow gate for exceptions — where a dispute transcends routine merits review (for example, where it raises systemic constitutional issues); where the statutory path is ineffective; or where urgent structural relief is necessary and no practical alternative exists.” 15.Lastly, in a more recent Supreme Court of Kenya decision of Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR), the court held as follows at paragraph 105: -“We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances. This means that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, is a necessary prerequisite on the part of any superior court.” 16Consequently, and in agreement with the plaintiff, the entire scope of his claim does not wholly fall within the jurisdiction of EPRA or EPT, as it also involves allegations of trespass against the decision of the 1st defendant for allegedly establishing beacons within the suit property without his consent. In other words, the suit is multifaceted. 17.Being multifaceted and having several dispute resolution fora, including this court, it would be impractical and a waste of time for the plaintiff to split its claim and lodge it with different adjudicative bodies. 18.Therefore, the PO dated 7 January 2026 is found not merited. It is dismissed with costs in the cause. Parties are directed to comply with Order 11 of the Civil Procedure Rules within 60 days. A mention date shall be issued. It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 16TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE16.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Miss Gaita holding brief for Mr. Oscar Otieno for plaintiff.No appearance for defendant.