The petitioners allege to be Kenyan citizens residing and owning property at Jomvu Kuu and bring this petition under Articles 22,23 40 and 47 of the Constitution of Kenya 2010 for the infringement on THEIR constitutional rights.
The facts of the petition are that the petitioners are lawful owners and/or occupants of parcels of land described as Jomvu Kuu within Jomvu Sub-County. On or about 4th April 2025 the petitioners were issued with a notice and were threatened with demolition of property by agents and/or contractors acting under the authority of the respondent on the grounds that the petitioners are allegedly encroaching on the wayleaves corridor, some of the petitioners have titles emanating from the mother title while the rest are awaiting.
The respondent has not provided evidence of a legally registered or gazette wayleaves affecting the said parcels of land nor were the petitioners ever consulted, compensated or involved in any public participation regarding the same.
The respondent has failed to issue adequate or lawful notice or conduct a hearing or explore alternative means of resolving the alleged encroachment, if any.
It is alleged that the respondent has violated Article 40, 47, 80 and 27 of the Constitution of Kenya 2010.
The petition seeks reliefs thus a declaration that the respondent threatened demolition of the petitioner’ property is illegal, unlawful and unconstitutional. A conservatory order by way of injunction restraining the respondents, its servants or agents from entering, demolishing and/or interfering with the petitioners’’ property known as Jomvu Kuu within Jomvu Sub-county. Moreover, an order compelling the respondent to provide documentary proof of any registered wayleaves affecting the petitioners’’ property. Lastly, an order for compensation for any loss or damage occasioned by unlawful threat of demolition plus costs of this petition and interests thereon.
The respondent filed a Preliminary Objection that this Honorable Court lacks jurisdiction to hear and determine this suit and should be struck out with costs together with consequential orders as the same offends the provisions of sections 3, 10; 1 1(e), (i), (k) & (l); 23; 24; 36; 40; 42 and 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) Fair Administrative Action Act, 2015.
This Honorable Court lacks jurisdiction to hear and determine this suit as the same offends section 7 of the Civil Procedure Act as a decision in this matter was delivered in Mombasa ELC No. E064 of 2022, Charo Gona, and 56 others vs. KPLC via ruling delivered on 28.03.2023 as attached.
The respondent submits that the preliminary objection meets the threshold of a preliminary objection as it is a prime part of land. The gist of the preliminary objection is that issues of formation on matters relating to energy as against the respondent has been deliberated and settled by various courts in Kenya.
The applicant relies on the Civil appeal NO 42 of 2021 Abidha Nicholas was ________ others National Environmental Com________ Committee and 5 others.
In their case in a judgment of the Court of Appeal held that such disputes were to be raised that before the Energy and Petroleum Regulatory Authority [EPRA]. The second would be the Energy and Petroleum Transit. The third would be the ELC only upon explanation of the appellate proceeding before the Energy and Petroleum Transit.
The respondent submitted that the doctrine of exhaustion imposes on obligation on parties to exhaust any alternative disputes resolution mediation before entering on a court process.
The respondent submits that 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 vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [20171 eKLR.
In Nairobi ELC No. E092/2022, Lawrence Warari Nduni vs. Teresia Karagi Kirui & 4 Others, in a ruling that was delivered on 01.11.2022, the Honorable Court established that the doctrine of exhaustion crystalized when the Plaintiff submitted that the Energy Act, 2019 does not take away the jurisdiction of the Court in land matters especially on trespass.
The respondent urges the court not to depart from these sound jurisprudences in consideration and determination of this present matter pursuant to:
a) Sections 3, 10, Il(e), (f), (i), (k) & 23; 24; 36; 40; 42; 160; 167; and the Energy Act, 2019.
b) Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012;
c) The Energy Tribunal Rules, 2008;
d) Article 159(2)(c) and 169(l)(d) and (2) of the Constitution of Kenya, 2010; and
e) Sections 9(2) and (3) Fair Administrative Action Act, 2015.
f) Section 7 of the Civil Procedure Act
Having established that there exists competent alternative dispute resolution mechanisms available to the petitioners and the same are bestowed with the requisite capacity to grant the reliefs sought the respondent submits that this Honorable Court find that it lacks jurisdiction to entertain this matter at first instance.
Further, the respondent submits that the jurisdiction of this Honourable Court is barred by the doctrine of res judicata as provided under section 7 of the Civil Procedure Act. The petitioners had lodged a similar suit in Gona & 56 Others v. Kenya Power & Lighting Company (Civil Suit No. E064 0/2022) [20231 KEELC 20214 (RLR) which ruling was delivered on 21.09,2023.
The petitioners have approached this Honourable Court with unclean hands having not disclosed o to this Honourable Court that they had filed a similar case in Gona & 56 Others v. Kenya Power & Lighting Company (Civil suit No. E064 0/2022) (20231 KEELC 20214 (KLR) which case z was dismissed for want of jurisdiction. In any event, this is a clear instance of abuse of the court process. The respondent prays that the proceedings herein in its entirety be hereby dismissed with costs to the respondent.
The applicant submits that the provisions cited in number 1 of the preliminary objection does not bar the petitioners from seeking redress in court and that the energy Act regulates the licensing of the energy operators and it deals with wayleaves, easements and compensation for affected lands in the cause of wayleaves and easements. It also sets safety standards and for constructions of particular infrastructures.
According to the applicant, the said Act does not restrict petitioners from seeking redress in court nor stop them from seeking justice in court when they are unlawfully affected by the respondent’s actions. They are not precluded from approaching the court constitutionally.
The provisions of the energy Act cannot therefore defeat a constitutional right to stop demolitions of the petitioners’ buildings.
Articles 22, 23, 40, 47 and 50 of the constitution of Kenya is supreme and no law including the Energy ACT can override them. The court must rise to its occasion so as to preserve the proprietary rights of the petitioners.
The respondent seeks to block the petitioners through a preliminary objection from accessing justice and seeking for protection in court which is against public policy.
In answer to paragraph 2 of the preliminary objection, they submit that section 7 of the Civil Procedure Act does to apply for the reasons that the respondent has not attached the said ruling of the quoted case. The matter cannot be deemed to be res-judicata under section 7 of the Civil Procedure Act because under that provision, a matter can be res-judicata if it has been heard on merits and determined. The elements for a matter to be deemed as res-judicata as per section 7 of the Civil Procedure Act is well explained in the Act.
In John Florence Maritime Services limited and another vs Cabinet Secretary, Transport and Infrastructure and 3 others [2021] eKLR [Supreme Court of Kenya] and in Motende vs Teachers Service Commission [Cause E013 of 2025] KEELRC 3513 [KLR], the two celebrated cases explains in detail matters which are deemed to be res-judicata.
This court has considered the preliminary objection and do find that the respondents have heavily relied on the case of Abidhan Nicholas in the Court of Appeal. This doctrine of exhaustion was tested in the Supreme Court in the same case. On the doctrine of exhaustion, it has been held by The Supreme Court of Kenya in the case of Abidha Nicholas v the Attorney General & 7 Others [2024]eKLR and which case mentioned their position in Kibos Distillers v Benson Adega and several other cases.
At paragraph 104 the decision the Supreme .Court held thus;-
On the issue of exhaustion, this court finds that the jurisdiction to hear the petition lies squarely with the Environment and Land Court t as the issues raised of violation of property rights cannot be entertained by the Land acquisition Tribunal. Tribunals cannot determine the violation of rights and fundamental freedoms. The Supreme Court in the case of Abidha Nicholas v the Attorney General & 7 Others [2024]eKLR and which case mentioned their position in Kibos Distillers v Benson Adega and several other cases. At paragraph 104 the S.C held thus;-“Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) stated:“In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
For res judicata to be invoked in a civil matter the following elements must be demonstrated: There is a former Judgment or order which was final; The Judgment or order was on merit; . The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and there must be between the first and the second action identical parties, subject matter and cause of action.”
On the issue of res-judicata, I do find that the same Cannot be determined by way of preliminary objection as the respondents need to call evidence to assist the court understand the other dispute that has been determine, the parties, the issues and determination and jurisdiction of the court. In this case, the decision of the court in the other case has not been annexed. The preliminary objection is dismissed with costs.
The facts of the petition are that the petitioners are lawful owners and/or occupants of parcels of land described as Jomvu Kuu within Jomvu Sub-County. On or about 4th April 2025 the petitioners were issued with a notice and were threatened with demolition of property by agents and/or contractors acting under the authority of the respondent on the grounds that the petitioners are allegedly encroaching on the wayleaves corridor, some of the petitioners have titles emanating from the mother title while the rest are awaiting.
The respondent has not provided evidence of a legally registered or gazette wayleaves affecting the said parcels of land nor were the petitioners ever consulted, compensated or involved in any public participation regarding the same.
The respondent has failed to issue adequate or lawful notice or conduct a hearing or explore alternative means of resolving the alleged encroachment, if any.
It is alleged that the respondent has violated Article 40, 47, 80 and 27 of the Constitution of Kenya 2010.
The petition seeks reliefs thus a declaration that the respondent threatened demolition of the petitioner’ property is illegal, unlawful and unconstitutional. A conservatory order by way of injunction restraining the respondents, its servants or agents from entering, demolishing and/or interfering with the petitioners’’ property known as Jomvu Kuu within Jomvu Sub-county. Moreover, an order compelling the respondent to provide documentary proof of any registered wayleaves affecting the petitioners’’ property. Lastly, an order for compensation for any loss or damage occasioned by unlawful threat of demolition plus costs of this petition and interests thereon.
The respondent filed a Preliminary Objection that this Honorable Court lacks jurisdiction to hear and determine this suit and should be struck out with costs together with consequential orders as the same offends the provisions of sections 3, 10; 1 1(e), (i), (k) & (l); 23; 24; 36; 40; 42 and 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) Fair Administrative Action Act, 2015.
This Honorable Court lacks jurisdiction to hear and determine this suit as the same offends section 7 of the Civil Procedure Act as a decision in this matter was delivered in Mombasa ELC No. E064 of 2022, Charo Gona, and 56 others vs. KPLC via ruling delivered on 28.03.2023 as attached.
The respondent submits that the preliminary objection meets the threshold of a preliminary objection as it is a prime part of land. The gist of the preliminary objection is that issues of formation on matters relating to energy as against the respondent has been deliberated and settled by various courts in Kenya.
The applicant relies on the Civil appeal NO 42 of 2021 Abidha Nicholas was ________ others National Environmental Com________ Committee and 5 others.
In their case in a judgment of the Court of Appeal held that such disputes were to be raised that before the Energy and Petroleum Regulatory Authority [EPRA]. The second would be the Energy and Petroleum Transit. The third would be the ELC only upon explanation of the appellate proceeding before the Energy and Petroleum Transit.
The respondent submitted that the doctrine of exhaustion imposes on obligation on parties to exhaust any alternative disputes resolution mediation before entering on a court process.
The respondent submits that 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 vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [20171 eKLR.
In Nairobi ELC No. E092/2022, Lawrence Warari Nduni vs. Teresia Karagi Kirui & 4 Others, in a ruling that was delivered on 01.11.2022, the Honorable Court established that the doctrine of exhaustion crystalized when the Plaintiff submitted that the Energy Act, 2019 does not take away the jurisdiction of the Court in land matters especially on trespass.
The respondent urges the court not to depart from these sound jurisprudences in consideration and determination of this present matter pursuant to:
a) Sections 3, 10, Il(e), (f), (i), (k) & 23; 24; 36; 40; 42; 160; 167; and the Energy Act, 2019.
b) Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012;
c) The Energy Tribunal Rules, 2008;
d) Article 159(2)(c) and 169(l)(d) and (2) of the Constitution of Kenya, 2010; and
e) Sections 9(2) and (3) Fair Administrative Action Act, 2015.
f) Section 7 of the Civil Procedure Act
Having established that there exists competent alternative dispute resolution mechanisms available to the petitioners and the same are bestowed with the requisite capacity to grant the reliefs sought the respondent submits that this Honorable Court find that it lacks jurisdiction to entertain this matter at first instance.
Further, the respondent submits that the jurisdiction of this Honourable Court is barred by the doctrine of res judicata as provided under section 7 of the Civil Procedure Act. The petitioners had lodged a similar suit in Gona & 56 Others v. Kenya Power & Lighting Company (Civil Suit No. E064 0/2022) [20231 KEELC 20214 (RLR) which ruling was delivered on 21.09,2023.
The petitioners have approached this Honourable Court with unclean hands having not disclosed o to this Honourable Court that they had filed a similar case in Gona & 56 Others v. Kenya Power & Lighting Company (Civil suit No. E064 0/2022) (20231 KEELC 20214 (KLR) which case z was dismissed for want of jurisdiction. In any event, this is a clear instance of abuse of the court process. The respondent prays that the proceedings herein in its entirety be hereby dismissed with costs to the respondent.
The applicant submits that the provisions cited in number 1 of the preliminary objection does not bar the petitioners from seeking redress in court and that the energy Act regulates the licensing of the energy operators and it deals with wayleaves, easements and compensation for affected lands in the cause of wayleaves and easements. It also sets safety standards and for constructions of particular infrastructures.
According to the applicant, the said Act does not restrict petitioners from seeking redress in court nor stop them from seeking justice in court when they are unlawfully affected by the respondent’s actions. They are not precluded from approaching the court constitutionally.
The provisions of the energy Act cannot therefore defeat a constitutional right to stop demolitions of the petitioners’ buildings.
Articles 22, 23, 40, 47 and 50 of the constitution of Kenya is supreme and no law including the Energy ACT can override them. The court must rise to its occasion so as to preserve the proprietary rights of the petitioners.
The respondent seeks to block the petitioners through a preliminary objection from accessing justice and seeking for protection in court which is against public policy.
In answer to paragraph 2 of the preliminary objection, they submit that section 7 of the Civil Procedure Act does to apply for the reasons that the respondent has not attached the said ruling of the quoted case. The matter cannot be deemed to be res-judicata under section 7 of the Civil Procedure Act because under that provision, a matter can be res-judicata if it has been heard on merits and determined. The elements for a matter to be deemed as res-judicata as per section 7 of the Civil Procedure Act is well explained in the Act.
In John Florence Maritime Services limited and another vs Cabinet Secretary, Transport and Infrastructure and 3 others [2021] eKLR [Supreme Court of Kenya] and in Motende vs Teachers Service Commission [Cause E013 of 2025] KEELRC 3513 [KLR], the two celebrated cases explains in detail matters which are deemed to be res-judicata.
This court has considered the preliminary objection and do find that the respondents have heavily relied on the case of Abidhan Nicholas in the Court of Appeal. This doctrine of exhaustion was tested in the Supreme Court in the same case. On the doctrine of exhaustion, it has been held by The Supreme Court of Kenya in the case of Abidha Nicholas v the Attorney General & 7 Others [2024]eKLR and which case mentioned their position in Kibos Distillers v Benson Adega and several other cases.
At paragraph 104 the decision the Supreme .Court held thus;-
On the issue of exhaustion, this court finds that the jurisdiction to hear the petition lies squarely with the Environment and Land Court t as the issues raised of violation of property rights cannot be entertained by the Land acquisition Tribunal. Tribunals cannot determine the violation of rights and fundamental freedoms. The Supreme Court in the case of Abidha Nicholas v the Attorney General & 7 Others [2024]eKLR and which case mentioned their position in Kibos Distillers v Benson Adega and several other cases. At paragraph 104 the S.C held thus;-“Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) stated:“In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
For res judicata to be invoked in a civil matter the following elements must be demonstrated: There is a former Judgment or order which was final; The Judgment or order was on merit; . The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and there must be between the first and the second action identical parties, subject matter and cause of action.”
On the issue of res-judicata, I do find that the same Cannot be determined by way of preliminary objection as the respondents need to call evidence to assist the court understand the other dispute that has been determine, the parties, the issues and determination and jurisdiction of the court. In this case, the decision of the court in the other case has not been annexed. The preliminary objection is dismissed with costs.