Introduction and Background
1. The Plaintiff instituted these proceedings and, contemporaneously therewith, lodged a Notice of Motion dated 27th February 2026 seeking injunctive relief pending the hearing and determination of the suit. In response to the application, the 3rd respondent raised a preliminary objection, which I have considered alongside the written submissions of the parties. I have taken note the Applicant’s protest regarding the belated filing of submissions by the 3rd Respondent. However, in the interests of substantive justice and bearing in mind the overriding objective of the Civil Procedure Act and Rules, I am inclined to admit the said submissions particularly because the Applicant, in its own submissions, did file a rejoinder thereto, thereby demonstrating that no prejudice has been occasioned to them.
2. The objection raised touches on the jurisdiction of this Court, and it is trite law that jurisdiction is a threshold issue which must be determined at the earliest opportunity. Without jurisdiction, the Court cannot proceed further. (See Owners of Motor Vessel Lillian S vs. Caltex Oil (Kenya) Limited [1989] KLR 1).
3. The 3rd Respondent relies on Section 36(1) of the Energy Act, Cap 314, which vests jurisdiction in the Energy and Petroleum Tribunal to hear and determine all matters relating to the energy and petroleum sector. Section 36(4) further provides that the Tribunal exercises appellate jurisdiction over decisions of the 3rd Respondent. The respondent contends that any grievance arising from its decisions or actions must first be ventilated before the Tribunal.
4. The 3rd Respondent submits that the applicant has approached this Court without exhausting the alternative remedies available, contrary to the doctrine of exhaustion, which is a constitutional imperative under Article 159(2)(c) of the Constitution and which position is reinforced by jurisprudence.
5. In response to the preliminary objection, the Applicant maintains that it does not engage in the energy or petroleum business, nor does it operate under any licence issued by the 3rd Respondent. It therefore contends that it falls outside the ambit and regulatory purview of Section 36 of the Energy Act. It asserts that its operations are governed exclusively under the Special Economic Zones Act (SEZA), and that the 3rd Respondent is, in effect, a stranger to its activities and has no lawful mandate over its business.
6. On the doctrine of exhaustion, the Applicant argues that the jurisdiction of this Court is not ousted merely because alternative forums exist. It submits that the High Court retains residual jurisdiction to intervene in appropriate circumstances. In support of this proposition, the Applicant relies on the authority of Matu v Rubi Energy Limited [2024] KEHC 15235 (KLR), wherein the Court affirmed that the doctrine of exhaustion is not absolute and that the High Court may properly assume jurisdiction notwithstanding the availability of statutory dispute resolution mechanisms. The Applicant therefore urges this Court to dismiss the preliminary objection.
Analysis and Determination
7. The cardinal issue that falls for determination is whether this Court should assume jurisdiction over the matter presently before it. In resolving this question, it is necessary to consider the scope and intent of the Energy Act. The preamble to the Act makes it abundantly clear that the statute is a comprehensive legislative framework designed to amongst others, regulate midstream and downstream petroleum and coal activities, as well as the generation, production, supply, and use of electricity and other forms of energy, together with all matters incidental and connected thereto.
8. Section 25 of the Act establishes the Energy and Petroleum Tribunal (hereinafter “the Tribunal”), which is vested with the mandate to hear and determine disputes and appeals in accordance with the provisions of the Act or any other written law. The Tribunal is therefore the primary forum envisaged by Parliament for the resolution of disputes arising within the energy and petroleum sector. This position is confirmed by Section 36(1) of the Act which expressly confers wide jurisdiction upon the Tribunal to hear and determine all matters referred to it relating to the energy and petroleum sector, whether arising under the Energy Act itself or under any other statute.
9. The breadth of this provision confirms the legislative intent to channel disputes within the sector to the Tribunal as a specialized forum, so as to promote consistency, expertise, and efficiency in the resolution of such matters. It follows, therefore, that in determining whether this Court should exercise jurisdiction, it must weigh the statutory framework against the Applicant’s contention that its operations fall outside the purview of the Energy Act and are instead regulated under the Special Economic Zones Act (hereinafter SEZA). The Court must also consider whether, notwithstanding the existence of the Tribunal, residual jurisdiction remains vested in the High Court in this instance.
10. It is not in dispute that the SEZA establishes Special Economic Zones and provides for the regulation of activities conducted therein. Section 4 of SEZA makes it clear that Special Economic Zones are statutory creations and remain subject to the domestic laws of Kenya.
11. The Applicant’s contention that entities operating within SEZs are insulated from domestic regulation is, in my view, untenable. If such an argument were to be accepted, it would lead to an absurdity whereby SEZ operations would be excluded from oversight by statutory bodies such as the Kenya Revenue Authority or the Central Bank of Kenya, notwithstanding the express provisions of SEZA which incorporate and recognize the applicability of these and other domestic and regional laws.
12. In any case, the Applicant has not demonstrated the existence of any statutory exemption shielding SEZ entities from the application of the Energy Act. On the contrary, my reading of SEZA is that the statutory scheme envisages that SEZ entities, while enjoying certain incentives and facilitative measures, remain subject to the general body of Kenyan law, including sector-specific regulation where applicable. Accordingly, I do find and hold that entities operating within Special Economic Zones are not immune from the application of the Energy Act. They remain subject to Kenyan law, and where their activities fall within the energy and petroleum sector, they are properly regulated under the Energy Act and amenable to the jurisdiction of the Energy and Petroleum Tribunal.
13. While the Applicant has consistently maintained that it is neither engaged in the energy nor petroleum business, I do note that it has not expressly denied being in possession of electrical appliances as alleged by the 3rd Respondent. Such appliances, by their very nature, fall within the regulatory framework established under the Energy (Appliances’ Energy Performance and Labelling) Regulations, 2016, which prescribe mandatory compliance requirements relating to energy efficiency and labelling standards. The Applicant has equally not provided evidence to controvert the 3rd Respondent’s contention and prove what goods the 3rd Respondent has otherwise sealed off.
14. The jurisprudence is settled that where a statute establishes a specialized forum for dispute resolution, parties must first exhaust such mechanisms before approaching the High Court. While the High Court retains unlimited jurisdiction under Article 165 of the Constitution, it will only intervene in exceptional circumstances, such as where the alternative forum is shown to be ineffective, or incapable of granting adequate relief.
15. In this regard, the Supreme Court in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) (2019) eKLR held as follows:
“… the Court must exercise restraint in exercising its jurisdiction under Article 165. Where there exist alternative methods of dispute resolution, the Court must exercise deference to the bodies statutorily mandated to deal with specific disputes in the first instance…. The foregoing verdict also finds support in an adage principle in administrative law of “exhaustion of administrative remedies” and from the jurisprudence emanating from this Court and the lower Courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance …”
16. In the present case, no special reason has been advanced to justify bypassing the Tribunal. The applicant has not demonstrated that the Tribunal is incapable of addressing the grievances raised. The mere assertion that the applicant is not a licensee under the Energy Act does not oust the Tribunal’s jurisdiction, given the broad wording of Section 36(1) of the Act.
Disposition
17. Accordingly, the preliminary objection is upheld. The suit together with the Notice of Motion dated 27th February 2026 are hereby struck out. Costs shall follow the event.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 19th DAY OF MARCH 2026.
F. MUGAMBI
JUDGE
1. The Plaintiff instituted these proceedings and, contemporaneously therewith, lodged a Notice of Motion dated 27th February 2026 seeking injunctive relief pending the hearing and determination of the suit. In response to the application, the 3rd respondent raised a preliminary objection, which I have considered alongside the written submissions of the parties. I have taken note the Applicant’s protest regarding the belated filing of submissions by the 3rd Respondent. However, in the interests of substantive justice and bearing in mind the overriding objective of the Civil Procedure Act and Rules, I am inclined to admit the said submissions particularly because the Applicant, in its own submissions, did file a rejoinder thereto, thereby demonstrating that no prejudice has been occasioned to them.
2. The objection raised touches on the jurisdiction of this Court, and it is trite law that jurisdiction is a threshold issue which must be determined at the earliest opportunity. Without jurisdiction, the Court cannot proceed further. (See Owners of Motor Vessel Lillian S vs. Caltex Oil (Kenya) Limited [1989] KLR 1).
3. The 3rd Respondent relies on Section 36(1) of the Energy Act, Cap 314, which vests jurisdiction in the Energy and Petroleum Tribunal to hear and determine all matters relating to the energy and petroleum sector. Section 36(4) further provides that the Tribunal exercises appellate jurisdiction over decisions of the 3rd Respondent. The respondent contends that any grievance arising from its decisions or actions must first be ventilated before the Tribunal.
4. The 3rd Respondent submits that the applicant has approached this Court without exhausting the alternative remedies available, contrary to the doctrine of exhaustion, which is a constitutional imperative under Article 159(2)(c) of the Constitution and which position is reinforced by jurisprudence.
5. In response to the preliminary objection, the Applicant maintains that it does not engage in the energy or petroleum business, nor does it operate under any licence issued by the 3rd Respondent. It therefore contends that it falls outside the ambit and regulatory purview of Section 36 of the Energy Act. It asserts that its operations are governed exclusively under the Special Economic Zones Act (SEZA), and that the 3rd Respondent is, in effect, a stranger to its activities and has no lawful mandate over its business.
6. On the doctrine of exhaustion, the Applicant argues that the jurisdiction of this Court is not ousted merely because alternative forums exist. It submits that the High Court retains residual jurisdiction to intervene in appropriate circumstances. In support of this proposition, the Applicant relies on the authority of Matu v Rubi Energy Limited [2024] KEHC 15235 (KLR), wherein the Court affirmed that the doctrine of exhaustion is not absolute and that the High Court may properly assume jurisdiction notwithstanding the availability of statutory dispute resolution mechanisms. The Applicant therefore urges this Court to dismiss the preliminary objection.
Analysis and Determination
7. The cardinal issue that falls for determination is whether this Court should assume jurisdiction over the matter presently before it. In resolving this question, it is necessary to consider the scope and intent of the Energy Act. The preamble to the Act makes it abundantly clear that the statute is a comprehensive legislative framework designed to amongst others, regulate midstream and downstream petroleum and coal activities, as well as the generation, production, supply, and use of electricity and other forms of energy, together with all matters incidental and connected thereto.
8. Section 25 of the Act establishes the Energy and Petroleum Tribunal (hereinafter “the Tribunal”), which is vested with the mandate to hear and determine disputes and appeals in accordance with the provisions of the Act or any other written law. The Tribunal is therefore the primary forum envisaged by Parliament for the resolution of disputes arising within the energy and petroleum sector. This position is confirmed by Section 36(1) of the Act which expressly confers wide jurisdiction upon the Tribunal to hear and determine all matters referred to it relating to the energy and petroleum sector, whether arising under the Energy Act itself or under any other statute.
9. The breadth of this provision confirms the legislative intent to channel disputes within the sector to the Tribunal as a specialized forum, so as to promote consistency, expertise, and efficiency in the resolution of such matters. It follows, therefore, that in determining whether this Court should exercise jurisdiction, it must weigh the statutory framework against the Applicant’s contention that its operations fall outside the purview of the Energy Act and are instead regulated under the Special Economic Zones Act (hereinafter SEZA). The Court must also consider whether, notwithstanding the existence of the Tribunal, residual jurisdiction remains vested in the High Court in this instance.
10. It is not in dispute that the SEZA establishes Special Economic Zones and provides for the regulation of activities conducted therein. Section 4 of SEZA makes it clear that Special Economic Zones are statutory creations and remain subject to the domestic laws of Kenya.
11. The Applicant’s contention that entities operating within SEZs are insulated from domestic regulation is, in my view, untenable. If such an argument were to be accepted, it would lead to an absurdity whereby SEZ operations would be excluded from oversight by statutory bodies such as the Kenya Revenue Authority or the Central Bank of Kenya, notwithstanding the express provisions of SEZA which incorporate and recognize the applicability of these and other domestic and regional laws.
12. In any case, the Applicant has not demonstrated the existence of any statutory exemption shielding SEZ entities from the application of the Energy Act. On the contrary, my reading of SEZA is that the statutory scheme envisages that SEZ entities, while enjoying certain incentives and facilitative measures, remain subject to the general body of Kenyan law, including sector-specific regulation where applicable. Accordingly, I do find and hold that entities operating within Special Economic Zones are not immune from the application of the Energy Act. They remain subject to Kenyan law, and where their activities fall within the energy and petroleum sector, they are properly regulated under the Energy Act and amenable to the jurisdiction of the Energy and Petroleum Tribunal.
13. While the Applicant has consistently maintained that it is neither engaged in the energy nor petroleum business, I do note that it has not expressly denied being in possession of electrical appliances as alleged by the 3rd Respondent. Such appliances, by their very nature, fall within the regulatory framework established under the Energy (Appliances’ Energy Performance and Labelling) Regulations, 2016, which prescribe mandatory compliance requirements relating to energy efficiency and labelling standards. The Applicant has equally not provided evidence to controvert the 3rd Respondent’s contention and prove what goods the 3rd Respondent has otherwise sealed off.
14. The jurisprudence is settled that where a statute establishes a specialized forum for dispute resolution, parties must first exhaust such mechanisms before approaching the High Court. While the High Court retains unlimited jurisdiction under Article 165 of the Constitution, it will only intervene in exceptional circumstances, such as where the alternative forum is shown to be ineffective, or incapable of granting adequate relief.
15. In this regard, the Supreme Court in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) (2019) eKLR held as follows:
“… the Court must exercise restraint in exercising its jurisdiction under Article 165. Where there exist alternative methods of dispute resolution, the Court must exercise deference to the bodies statutorily mandated to deal with specific disputes in the first instance…. The foregoing verdict also finds support in an adage principle in administrative law of “exhaustion of administrative remedies” and from the jurisprudence emanating from this Court and the lower Courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance …”
16. In the present case, no special reason has been advanced to justify bypassing the Tribunal. The applicant has not demonstrated that the Tribunal is incapable of addressing the grievances raised. The mere assertion that the applicant is not a licensee under the Energy Act does not oust the Tribunal’s jurisdiction, given the broad wording of Section 36(1) of the Act.
Disposition
17. Accordingly, the preliminary objection is upheld. The suit together with the Notice of Motion dated 27th February 2026 are hereby struck out. Costs shall follow the event.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 19th DAY OF MARCH 2026.
F. MUGAMBI
JUDGE