1. Before this Court for determination is the Notice of Preliminary Objection dated 7th April 2026, raised by the 1st Defendant/Respondent, Kenya Power & Lighting Co. Ltd. The 1st Defendant principally seeks for an order dismissing the Plaintiff’s suit with costs on the ground that this Court lacks the requisite jurisdiction to entertain the suit at first instance .
2. The application is opposed by the Plaintiff/Respondent through his reply dated 6th July 2026 wherein he urged the court to dismiss the same with costs as it is an abuse of the court process and that this court has the requisite jurisdiction to entertain the suit.
3. The 1st Defendant's Preliminary Objection is premised on the argument that this Court lacks jurisdiction. The objection is rooted in the following legal provisions:
a. Sections 3, 10, 11(e), (f), (i) and (k), 23, 24, 36, 40, 42, and 224(2)(e) of the Energy Act, 2019.
b. Regulations 2, 4, 7, 9, and 21 of the Energy (Complaints and Disputes Resolution) Regulations, 2012.
c. Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010.
d. Sections 9(2) and (3) of the Fair Administrative Action Act, 2015.
4. In opposition, the Plaintiff contends inter alia that: only the first respondent has challenged/disputed the jurisdiction of this Hon. Court; that this honourable court has power and jurisdiction to hear and determine this matter or can refer it to court annexed mediation as the court deems fit; that the counsel for the first defendant cannot speak for the 3rd defendant as alleged in paragraph 7 line 8 of its statement of defence; that the objection for the first defendant presupposes a relationship between his client and a consumer of his client’s services which is not the case and that the authorities cited are not relevant; that counsel for the first respondent seemed to suggest that the matter should have first been heard by EPRA against his will which will prejudice him; that Article 159 (2) (d) justice shall be administered without undue regard to procedural technicalities and therefore it would be most unfair to deny the plaintiff justice in the circumstances; that this honourable court proceeds to hear the matter and that he suggested the matter be disposed by a way of written submissions.
5. The Preliminary Objection was canvassed by way of written submissions. It is only the 1 st Defendant who filed submissions while the 2 nd Defendant sought to rely on the 1 st Defendant’s preliminary objection and its submissions. There were no submissions by the Plaintiff. Hence, it is clear that it is only the Plaintiff and the 1 st Defendant who have come out to vigorously to ventilate their rival standpoints.
6. The 1st Defendant submitted that the Honourable Court did not need to reinvent the wheel as refining the wheel would often progress the jurisprudential journey further. They asserted it was trite law and a matter of sound practice that courts across the jurisdiction had consistently declined to entertain disputes presented when a clear alternative remedy existed.
7. The 1st Defendant cited Peter Muturi Njuguna v. Kenya Wildlife Service NKU CA Civil Appeal No. 260 of 2013 [2017] eKLR, where the Court of Appeal reiterated that where a specific procedure existed for redress of grievances, it had to be strictly followed. In that case, the court found the learned magistrate erred in dismissing the preliminary objection ruled that the subordinate court lacked jurisdiction, allowed the appeal, upheld the preliminary objection and struck out the suit.
8. The 1st Defendant further referred to Kilonzo & 2 others (Suing on behalf of Newlife Prayer Centre & Church) v. State Law & another (Civil Application E201 of 2024) [2024] KECA 1219 (KLR) (20 September 2024) (Ruling), where the Court of Appeal emphatically affirmed that where the Constitution or a statute provided a dispute resolution mechanism, it had to be utilized before resorting to the courts. The court was satisfied that the intended appeal was not arguable due to consistent rulings from the Court of Appeal and Supreme Court.
9. The 1st Defendant noted Leonard Otieno v. Airtel Kenya Limited [2018] eKLR where a consumer failed to pursue the statutory mechanism first. In dismissing the petition, the court stated that the established mechanism under the Act could afford an effective, readily available and sufficient remedy and a court of law could not be approached until the consumer exhausted the laid-down mechanism.
10. The 1st Defendant stated that the foundational basis of their Preliminary Objection rested on the question of jurisdiction which had been well settled by superior courts and was binding on the court. The 1st Defendant quoted the Supreme Court decision in Albert Chaurembo Mumbo & 7 others v. Maurice Munyao & 148 others; SC Petition No 3 of 2016 [2019] eKLR , where it was held that disputes disguised to attract superior court jurisdiction were no substitute for known legal procedures and the first opportunity had to be given to relevant statutory or quasi-judicial bodies.
11. The 1st Defendant referenced United Millers Ltd v. Kenya Bureau of Standards, Directorate of Criminal Investigations & 5 Others [2021] eKLR, where the Supreme Court re-emphasized that courts must exercise restraint and defer to statutory dispute resolution bodies in the first instance, finding that it had no jurisdiction to hear the petition or application. The 1st Defendant cited Ngugi v. Commissioner of Lands; Owindo & 63 others (Interested Parties) (Petition 9 of 2019) [2023] KESC 20 (KLR) (Civ) (31 March 2023) (Judgment), where the Supreme Court held that jurisdiction went to the root of any cause, rendering any judgment without it a nullity ( coram non judice ). The court affirmed that jurisdiction must exist at initiation, can be raised at any stage and can only be conferred by the Constitution or statute not judicial craft or consent.
12. The 1st Defendant humbly submitted that the jurisdiction of the Energy & Petroleum Regulatory Authority and the Energy & Petroleum Tribunal was expressly set out in the Energy Act 2019, urging the Court to find it lacked jurisdiction and dismiss the matter with costs to the 1st Defendant.
13. The 1st Defendant highlighted Republic v. Magistrate Court, Mombasa; Absin Synergy Limited (Interested Party) Judicial Review E033 of 2021) [2022] KEHC 10 (KLR), where the Court stated that jurisdiction is determined based on pleadings rather than substantive merits. The 1st Defendant observed that the Plaintiff instituted the suit via a plaint and notice of motion application both dated 23 rd January, 2026. Paragraphs 7(1), 7(2), and 7(3) of the plaint alleged that: 7(1) The Plaintiff, at the request of the 1st Defendant, provided consultancy services in deriving the formula for calculating electrical energy; 7(2) The Plaintiff developed the formula for calculating electrical energy dissipated per second in a circuit element; 7(3) The Defendant (KPLC) gave the Plaintiff an assignment to review their Protective Multiple Earthing (PME) system, suggest alternatives and indicate the benefits. The 1st Defendant submitted that these paragraphs spelled out the entire complaint regarding contract, billing, metering and tariffs which related to distribution, supply and use of electrical energy regulated under the Energy Act, 2019. The 1st Defendant submitted that despite the drafting of the pleadings, the Plaintiff’s claim clearly fell within the context of the Energy Act 2019.
14. The 1st Defendant noted that in their Notice of Preliminary Objection, they urged the Court to dismiss the suit with costs on grounds of lack of jurisdiction under: Sections 3, 10; 11(e), (f), (i), and (k); 23; 24; 36; 40; 42; and 224(2)(e) of the Energy Act, 2019; Regulations 2, 4, 7, 9, and 21 of the Energy (Complaints and Disputes Resolution) Regulations, 2012; Articles 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 Actions Act, 2015.
15. The 1st Defendant further relied in the case of Isack Aliaza v. Samuel Kisiavuki [2021] eKLR, where the Court of Appeal held that jurisdictional questions must be addressed first before interrogating the merits.
16. The 1st Defendant cited Joseph Njuguna Mwaura & 2 Others v. Republic [2013] eKLR, where the Court of Appeal held that jurisdiction is the first hurdle a court must cross and courts have no jurisdiction over matters vested in other arms of government. The 1st Defendant referred to Equity Bank Limited v. Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, where the Court of Appeal ruled that the High Court cannot transfer a suit filed in a court lacking jurisdiction to a competent court, as an incompetent suit is dead and cannot be sanctified by transfer, consent, overriding objectives or judicial craftsmanship.
17. The 1st Defendant quoted Phoenix of EA Assurance Company Limited v. SM Thiga t/a Newspaper Service [2019] eKLR, emphasizing that a suit filed without jurisdiction is "dead on arrival" and must be withdrawn. The 1st Defendant cited Kenya Ports Authority v. Modern Holdings [E.A] Limited [2017] eKLR noting that jurisdiction can be raised at any stage. The 1st Defendant cited Kibos Distillers & 4 Others v. Benson Ambuti Adega & 3 Others [2020] eKLR, where the Court of Appeal held that litigants cannot confer or oust jurisdiction through drafting craft, original jurisdiction does not oust statutory bodies and multifaceted claims do not confer jurisdiction.
18. The 1st Defendant noted that when the above suit escalated to the Supreme Court, the apex court emphasized remitting disputes to relevant statutory bodies. The 1st Defendant cited Alvin Kamande Njenga v. Gacheru [2016] eKLR, reaffirming that failure to raise jurisdiction does not confer it. The 1st Defendant cited Lemita Ole Lemein v. Attorney General & 2 others [2020] eKLR, where the Court held that jurisdiction is omnipresent, courts can raise it suo motu and it cannot be conferred by consent or ignoring the issue. The 1st Defendant cited Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] KLR 1, where Justice Nyarangi held that jurisdiction is everything and without it, a court must down its tools immediately. The 1st Defendant referenced John Musakali v. Speaker County of Bungoma & 4 others [2015] eKLR , noting that while constitutional rights exist, courts must allow statutory institutions to carry out their mandates. The 1st Defendant cited Section 5 of the Civil Procedure Act, 2010 which limits court jurisdiction where cognizance is expressly or impliedly barred. The 1st Defendant cited Amy Kagendo Mate v. Prime Bank Credit Reference Bureau Africa Limited [2013] eKLR, where Ngugi J struck out a petition for bypassing statutory remedies.
19. The 1st Defendant submitted that under Section 5 of the Civil Procedure Act and the Energy Act, 2019, the dispute ought to be determined by the Energy & Petroleum Regulatory Authority (formerly ERC) or the Energy & Petroleum Tribunal as High Court jurisdiction is expressly barred.
20. The 1st Defendant restated Article 159(1) of the Constitution of Kenya, 2010 which vests judicial authority in courts and tribunals. The 1st Defendant noted Article 169(1)(d) which recognizes subordinate courts and local tribunals established by Parliament. The 1st Defendant submitted that the Energy Act 2019 was assented to on March 12, 2019, and came into force on March 28, 2019. The 1st Defendant noted Article 159(2)(c), which recognizes alternative dispute resolution mechanisms. The 1st Defendant submitted that Article 169(1)(d) recognizes Parliament's power to create tribunals for specific disputes.
21. The 1st Defendant submitted that EPRA and the Tribunal were created under these constitutional powers repealing the Energy Act, 2006. The 1st Defendant referenced Law Society of Kenya v. Centre for Human Rights and Democracy & 13 others [2013] eKLR regarding High Court jurisdiction being exercised in conformity with the Constitution. The 1st Defendant cited Joshua Sembei Mutua v. Attorney General & 2 others [2019] eKLR, where the Court of Appeal warned against interpretations creating absurdities regarding tribunal powers. The 1st Defendant submitted that it is a constitutional imperative that tribunals are vested with judicial authority in specialized areas.
22. The 1st Defendant submitted that Section 3(1) of the Energy Act, 2019 establishes that the Act prevails over other laws regarding electricity importation, generation, transmission, distribution, supply or use. The 1st Defendant cited Abidha Nicholus v. Attorney General & 7 others [2021] eKLR , affirming that the Energy Act, 2019 prevails over other statutory legislation. The 1st Defendant highlighted Section 2 definitions of "distribution," "supply," and "use of electrical energy". The 1st Defendant cited Section 9 (establishing EPRA) and Section 11, which gives EPRA power to investigate complaints/disputes and issue directions/orders.
23. The 1st Defendant cited Section 167(m) empowering the Cabinet Secretary to prescribe procedures for hearings and dispute settlements before EPRA.The 1st Defendant cited Section 224(2)(e), saving prior subsidiary legislation not inconsistent with the Act. The 1st Defendant stated that the Energy (Complaints and Dispute Resolution) Regulations, 2012 were gazetted on May 25, 2012. The 1st Defendant submitted that statutory sections read with Regulations 2, 4, 7, 9, and 21 give EPRA jurisdiction over such disputes. The 1st Defendant quoted Regulation 2, applying the regulations to any complaint/dispute regarding licenses, contracts, or matters under the Act. The 1st Defendant quoted Regulation 4, listing covered dispute areas including billing, metering, tariffs, quality of supply and electrical energy use. The 1st Defendant cited Regulations 7 and 9, which set out dispute reference and hearing procedures.
24. The 1st Defendant noted Regulation 21, establishing appeals to the Tribunal within 30 days. The 1st Defendant cited Sections 23 and 24 regarding decision timelines and appeal procedures. The 1st Defendant submitted that Parliament intended to deny the High Court original jurisdiction in energy sector matters. The 1st Defendant submitted that the complaint concerned formula derivation and PME system review under the Energy Act, 2019 making the suit premature as statutory remedies were ignored. The 1st Defendant cited Speaker of National Assembly v. Njenga Karume [1992] 1KLR 425 , holding that statutory procedures must be strictly followed. The 1st Defendant submitted that EPRA is the proper forum with jurisdiction to hear and grant relief in this matter .
25. In the alternative, the 1st Defendant submitted that Section 25 established the Tribunal and Section 36 conferred original civil jurisdiction on disputes between licensees and third parties, appellate jurisdiction over EPRA and power to grant equitable reliefs. The 1st Defendant quoted Section 2 definitions of "licensee" and "licence". The 1st Defendant stated that as a public utility company listed in the Third Schedule, it is a licensee and that the Plaintiff is a third party under the Act. The 1st Defendant noted Section 36(5) giving the Tribunal power to grant injunctions, damages and specific performance.
26. The 1st Defendant cited Section 37 which sets out review procedures and appeals to the High Court within 30 days. The 1st Defendant mentioned the gazzettement of the Energy Tribunal Rules, 2008 on 26 th September 2008. The 1st Defendant submitted that the Rules set out clear tribunal procedures. The 1st Defendant cited Cyrus Komo Njoroge v. Kiringa Njoroge Gachoka & 2 Others [2015] eKLR, reinforcing that statutory procedures must be strictly followed. The 1st Defendant submitted that under Section 36, the High Court lacks jurisdiction and that the matter belongs before the Tribunal.
27. The 1st Defendant contended that jurisdiction is further addressed by the Fair Administrative Action Act, 2015. The 1st Defendant cited Section 9(2) and (3) of the Fair Administrative Action Act, 2015 which prohibits courts from reviewing administrative actions until internal mechanisms are exhausted. The 1st Defendant contended that the Plaintiff claimed engagement regarding electrical formulas and PME systems. The 1st Defendant submitted that the dispute is in reality, a complaint pursuant to the Energy Act, 2019. The 1st Defendant cited Night Rose Cosmetics (1972) Ltd v. Nairobi County Government & 2 Others [2018] eKLR, stressing that the word "shall" in Section 9 imports a mandatory command. The 1st Defendant submitted that the Plaintiff deliberately bypassed EPRA and the Tribunal, citing Republic v. Energy Regulatory Commission & 2 Others [2018] eKLR regarding the duty to promote ADR.
28. The 1st Defendant cited Abidha Nicholus v. Attorney General & 7 others [2021] eKLR, where the court struck out a petition under Section 9(2) and (3) for lack of exhaustion. The 1st Defendant submitted it is settled that energy matters must be handled in alternative statutory forums. The 1st Defendant cited Mutanga Tea & Company Ltd v Shikara Limited & Another [2015] eKLR, highlighting that statutory bodies provide expert, expeditious and cost-effective resolution. The 1st Defendant cited Republic v. Public Procurement Administrative Review Board & Energy Sectors Contractors Association Ex parte KPLC [2020] eKLR, noting administrative functionaries are best equipped with technical expertise. The 1st Defendant referenced Judicial Review Application No. 74 of 2018 (Republic v. PPARB Ex-Parte Pelt Security Services [2018] eKLR) on the specialized nature of statutory review boards.
29. The 1st Defendant highlighted that courts are slow to assume discretion entrusted by statute to tribunals. The 1st Defendant cited Republic v. Energy Regulatory Commission & 2 others [2018] eKLR, where the High Court struck out a motion for failing to utilize the specialist Energy Tribunal. It further submitted that EPRA and the Tribunal consist of specialized experts under Sections 10, 11, 12, 13 and 26 of the Act. The 1st Defendant cited Geoffrey Muthinja & Another v. Samuel Muguna Henry & 1756 Others [2015] eKLR , affirming that courts should be forums of last resort under Article 159. The 1st Defendant cited Josiah Tatiya Kipelian v. Dr. David ole Nkadienye & 2 Others [2014] eKLR, stating courts have no business extending tentacles where dispute procedures exist. The 1st Defendant submitted that the Plaintiff failed to exhaust Energy Act mechanisms, inviting the court to improperly assume jurisdiction. The 1st Defendant submitted that filing this suit constituted an abuse of court process. The 1st Defendant humbly submitted that the Court lacks jurisdiction to entertain the suit at first instance.
30. The 1st Defendant defined the Doctrine of Exhaustion using Black’s Law Dictionary (10th Edition) as requiring claimants to seek relief from administrative bodies first. The 1st Defendant asserted that the doctrine is deeply entrenched in Kenya. The 1st Defendant cited Speaker of National Assembly v. Njenga Karume and Albert Chaurembo Mumba, emphasizing that statutory procedures must be strictly followed absent exceptional circumstances. The 1st Defendant submitted that the Energy Act, 2019 provides complete remedies. The 1st Defendant submitted that the Plaintiff failed to show that statutory steps were exhausted and that the Plaintiff attempted to camouflage a statutory energy complaint as a civil issue. The 1st Defendant cited Secretary, County Public Service Board & another v. Hulbhai Gedi Abdille [2017] eKLR, holding that bypassing statutory appeal procedures without exceptional circumstances is improper. The 1st Defendant cited Martin Kabubii Mwangi v. County Government of Laikipia [2019] eKLR, reinforcing that exhaustion removes litigant discretion. The 1st Defendant reiterated that the suit arose from formula calculations and PME system reviews. The 1st Defendant submitted that claims fall squarely under the Energy Act, 2019.
31. The 1st Defendant further cited extensive case law holding that energy claims must follow statutory processes. The 1st Defendant cited Leonard Jefwa Inalama & Another v. Consolidated Bank of Kenya & 3 others [2014] eKLR regarding adherence to due process of law under Article 10. The 1st Defendant submitted that the suit is an abuse of process. The 1st Defendant pointed out that exhaustion promotes efficiency and reduces court workloads. It also quoted the US Supreme Court in McCarthy v. Madigan 503 U.S. 140 [1992] on agency delegation and primary responsibility. The 1st Defendant noted Section 36 of the Energy Act outlines the primary administrative remedy and placed reliance In the Matter of the Mui Coal Basin Local Community [2015] eKLR on the constitutional policy of fitting the fuss to the forum rather than maintaining an "Imperial Judiciary".
32. The 1st Defendant also cited William Odhiambo Ramogi & 3 others v. Attorney General & 4 others [2020] eKLR (5-Judge Bench), explaining the doctrine’s judicial lineage. It also cited the case of Kenya Pipeline Company Limited v. Hyosung Ebara Company Limited & 2 others [2012] eKLR regarding deference to specialized tribunals as well as the case of United Millers Limited v. Kenya Bureau of Standards [2021] eKLR, where constitutional claims were nipped in the bud due to failure to exhaust statutory remedies. Also in Kibos Distillers Limited v. Benson Ambuti Adega [2020] eKLR, where the Supreme Court struck out a petition for failure to pursue statutory tribunals.
33. The 1st Defendant also cited the UK decision in Oyekan v. Secretary of State for the Home Department [2016] EWCA Civ 1352, upholding exhaustion principles. The 1st Defendant acknowledged that exhaustion is subject to exceptions, quoting Krystalline Salt Limited v. Kenya Revenue Authority [2019] eKLR regarding "exceptional circumstances".
34. The 1st Defendant quoted the South African Constitutional Court decision in Koyabe & others v. Minister for Home Affairs 2010 (4) SA 327 (CC). The 1st Defendant submitted that the present matter does not fall under any exception and went ahead to submit that the burden of proving insufficiency shifts to the Plaintiff, which has not been met. The 1st Defendant submitted that EPRA is the prescribed initial forum. The 1st Defendant submitted that formula derivations and PME reviews are highly technical matters best suited for EPRA or the Tribunal under Sections 13 and 26. The 1st Defendant submitted that taking up this technical matter would intrude on statutory jurisdiction, erode institutional mandates and cause public waste. The 1st Defendant submitted that the suit contravenes the Doctrine of Exhaustion and should be dismissed.
35. The 1st Defendant summarized that EPRA holds primary jurisdiction over the complaint. It submitted that the Tribunal holds power to grant equitable reliefs under Section 36(5). The 1st Defendant submitted that settled jurisprudence dictates that energy complaints must first be presented to EPRA or the Tribunal. The 1st Defendant cited Nicholus v. Attorney General & 14 others (Civil Appeal 42 of 2021) [2023] KECA 34 (KLR), where the Court of Appeal confirmed the three-tiered resolution structure (EPRA → Tribunal → High Court). The 1st Defendant submitted that superior courts have spoken with near unanimity. The 1st Defendant cited Asitiba v. Energy & Petroleum Regulatory Authority & 2 others [2025] KEHC 8541 (KLR), where the High Court struck out a petition for failing to exhaust Section 36(4) remedies. The 1st Defendant cited Abidha Nicholus v. Attorney General & 7 others [2021] eKLR, confirming Section 9 of the Fair Administrative Action Act removes such disputes from the High Court. The 1st Defendant cited Anthony Mwangi Ng'ang'a & 35 others v. Kenya Urban Roads Authority & 6 others [2021] eKLR, where improper suits were struck out.
36. The 1st Defendant cited Nyagudi v. Agricultural Finance Corporation & 2 others [2023] KEHC 1322 (KLR), where the High Court upheld a preliminary objection on identical grounds. The 1st Defendant cited Makoffu v. Kenya Power & Lighting Co. Ltd [2023] KEHC 17974 (KLR), where the High Court struck out a petition and motion for lack of jurisdiction under the doctrine of exhaustion. The 1st Defendant cited Philip Okoth & LSK v. Board of Management St. Annes Primary School, Ahero & others (CA No. 173 of 2020), emphasizing that trial courts are bound by controlling precedents. The 1st Defendant urged the Court to respect statutory bodies, clear case backlogs and promote expeditious justice under Article 159.
37. The 1st Defendant quoted the Supreme Court in Bernard Murage v. Fine Serve Africa Limited & 3 Others [2015] eKLR on pursuing statutory remedies first. The 1st Defendant re-emphasized Speaker of the National Assembly v. Karume [2008] 1KLR 425. The 1st Defendant cited Esther Gachambi Mwangi v. Samuel Mwangi Mbiri [2013] eKLR , stating that courts must down tools when lacking jurisdiction. The 1st Defendant urged the Court to find it lacks jurisdiction and dismiss the matter with costs.
38. The 1st Defendant cited Section 27(1) of the Civil Procedure Act (Cap 21), stating costs follow the event. The 1st Defendant cited Kenya Sugar Board v. Ndungu Gathini [2013] eKLR. The 1st Defendant cited Joseph Nzyoki Mwanthi v. Kenya Power & Lighting Co. Ltd [2017] eKLR, where an appeal against dismissal for lack of energy jurisdiction was dismissed with costs. The 1st Defendant submitted that the Plaintiff prematurely dragged them to court despite knowing the statutory procedures. The 1st Defendant submitted that they expended considerable resources and ought to be compensated with costs. The 1st Defendant cited Cecilia Karuru Ngayu v. Barclays Bank of Kenya & Another [2016] eKLR, confirming costs compensate successful parties.
39. The 1st Defendant cited Party of Independent Candidate of Kenya v. Mutula Kilonzo & 2 others confirming judicial discretion in awarding costs. The 1st Defendant urged the Court to be guided by these authorities. The 1st Defendant concluded that statutory sections and regulations as backed by Speaker of National Assembly and Nicholus v. AG, establish a clear process starting with EPRA, then the Tribunal and finally the High Court. The 1st Defendant submitted that this represents settled jurisprudence. The 1st Defendant submitted that the suit exclusively falls under EPRA's jurisdiction. The 1st Defendant prayed that the suit against them be dismissed in its entirety with costs. The 1st Defendant invoked the doctrine of precedent ( stare decisis et non quieta movere ), inviting the court to follow cited decisions and their List of Authorities dated April 30, 2026.
40. I have considered the preliminary objection and the written submissions filed by the respective parties. I am of the view that the issue for determination is whether this court has jurisdiction to hear and determine the suit filed by the plaintiff
41. Law, J.A. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 stated as follows: “So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which raises by clear implication out of pleadings and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...’’
42. Also, the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that:
“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.
43. Therefore, the 1st Defendant's objection which is based on a question of jurisdiction is properly before this Court as a preliminary objection.
44. The doctrine of exhaustion is a well-established principle in Kenyan jurisprudence. It dictates that where a statute provides a specific procedure for the redress of a grievance, that procedure must be strictly followed before a court of law can be approached. The Court of Appeal in Speaker of the National Assembly v. Njenga Karume [1992] 1 KLR 425 held that "where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed"
45. This doctrine is also anchored in the Constitution. Article 159(2)(c) mandates courts to promote alternative forms of dispute resolution. Furthermore, Section 9(2) and (3) of the Fair Administrative Action Act, 2015 provides that courts shall not review administrative action unless the mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
46. The Supreme Court in Albert Chaurembo Mumbu & 7 others v. Maurice Munyao & 148 others [2019] eKLR and United Millers Ltd v. Kenya Bureau of Standards & 5 Others [2021] eKLR has consistently emphasized that courts must exercise restraint and give deference to dispute resolution bodies established by statutes.
47. The Energy Act, 2019 establishes a comprehensive framework for dispute resolution in the energy sector. Section 11(i) of the Act empowers EPRA to "investigate and determine complaints or disputes between parties over any matter relating to licences and licence conditi
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2. The application is opposed by the Plaintiff/Respondent through his reply dated 6th July 2026 wherein he urged the court to dismiss the same with costs as it is an abuse of the court process and that this court has the requisite jurisdiction to entertain the suit.
3. The 1st Defendant's Preliminary Objection is premised on the argument that this Court lacks jurisdiction. The objection is rooted in the following legal provisions:
a. Sections 3, 10, 11(e), (f), (i) and (k), 23, 24, 36, 40, 42, and 224(2)(e) of the Energy Act, 2019.
b. Regulations 2, 4, 7, 9, and 21 of the Energy (Complaints and Disputes Resolution) Regulations, 2012.
c. Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010.
d. Sections 9(2) and (3) of the Fair Administrative Action Act, 2015.
4. In opposition, the Plaintiff contends inter alia that: only the first respondent has challenged/disputed the jurisdiction of this Hon. Court; that this honourable court has power and jurisdiction to hear and determine this matter or can refer it to court annexed mediation as the court deems fit; that the counsel for the first defendant cannot speak for the 3rd defendant as alleged in paragraph 7 line 8 of its statement of defence; that the objection for the first defendant presupposes a relationship between his client and a consumer of his client’s services which is not the case and that the authorities cited are not relevant; that counsel for the first respondent seemed to suggest that the matter should have first been heard by EPRA against his will which will prejudice him; that Article 159 (2) (d) justice shall be administered without undue regard to procedural technicalities and therefore it would be most unfair to deny the plaintiff justice in the circumstances; that this honourable court proceeds to hear the matter and that he suggested the matter be disposed by a way of written submissions.
5. The Preliminary Objection was canvassed by way of written submissions. It is only the 1 st Defendant who filed submissions while the 2 nd Defendant sought to rely on the 1 st Defendant’s preliminary objection and its submissions. There were no submissions by the Plaintiff. Hence, it is clear that it is only the Plaintiff and the 1 st Defendant who have come out to vigorously to ventilate their rival standpoints.
6. The 1st Defendant submitted that the Honourable Court did not need to reinvent the wheel as refining the wheel would often progress the jurisprudential journey further. They asserted it was trite law and a matter of sound practice that courts across the jurisdiction had consistently declined to entertain disputes presented when a clear alternative remedy existed.
7. The 1st Defendant cited Peter Muturi Njuguna v. Kenya Wildlife Service NKU CA Civil Appeal No. 260 of 2013 [2017] eKLR, where the Court of Appeal reiterated that where a specific procedure existed for redress of grievances, it had to be strictly followed. In that case, the court found the learned magistrate erred in dismissing the preliminary objection ruled that the subordinate court lacked jurisdiction, allowed the appeal, upheld the preliminary objection and struck out the suit.
8. The 1st Defendant further referred to Kilonzo & 2 others (Suing on behalf of Newlife Prayer Centre & Church) v. State Law & another (Civil Application E201 of 2024) [2024] KECA 1219 (KLR) (20 September 2024) (Ruling), where the Court of Appeal emphatically affirmed that where the Constitution or a statute provided a dispute resolution mechanism, it had to be utilized before resorting to the courts. The court was satisfied that the intended appeal was not arguable due to consistent rulings from the Court of Appeal and Supreme Court.
9. The 1st Defendant noted Leonard Otieno v. Airtel Kenya Limited [2018] eKLR where a consumer failed to pursue the statutory mechanism first. In dismissing the petition, the court stated that the established mechanism under the Act could afford an effective, readily available and sufficient remedy and a court of law could not be approached until the consumer exhausted the laid-down mechanism.
10. The 1st Defendant stated that the foundational basis of their Preliminary Objection rested on the question of jurisdiction which had been well settled by superior courts and was binding on the court. The 1st Defendant quoted the Supreme Court decision in Albert Chaurembo Mumbo & 7 others v. Maurice Munyao & 148 others; SC Petition No 3 of 2016 [2019] eKLR , where it was held that disputes disguised to attract superior court jurisdiction were no substitute for known legal procedures and the first opportunity had to be given to relevant statutory or quasi-judicial bodies.
11. The 1st Defendant referenced United Millers Ltd v. Kenya Bureau of Standards, Directorate of Criminal Investigations & 5 Others [2021] eKLR, where the Supreme Court re-emphasized that courts must exercise restraint and defer to statutory dispute resolution bodies in the first instance, finding that it had no jurisdiction to hear the petition or application. The 1st Defendant cited Ngugi v. Commissioner of Lands; Owindo & 63 others (Interested Parties) (Petition 9 of 2019) [2023] KESC 20 (KLR) (Civ) (31 March 2023) (Judgment), where the Supreme Court held that jurisdiction went to the root of any cause, rendering any judgment without it a nullity ( coram non judice ). The court affirmed that jurisdiction must exist at initiation, can be raised at any stage and can only be conferred by the Constitution or statute not judicial craft or consent.
12. The 1st Defendant humbly submitted that the jurisdiction of the Energy & Petroleum Regulatory Authority and the Energy & Petroleum Tribunal was expressly set out in the Energy Act 2019, urging the Court to find it lacked jurisdiction and dismiss the matter with costs to the 1st Defendant.
13. The 1st Defendant highlighted Republic v. Magistrate Court, Mombasa; Absin Synergy Limited (Interested Party) Judicial Review E033 of 2021) [2022] KEHC 10 (KLR), where the Court stated that jurisdiction is determined based on pleadings rather than substantive merits. The 1st Defendant observed that the Plaintiff instituted the suit via a plaint and notice of motion application both dated 23 rd January, 2026. Paragraphs 7(1), 7(2), and 7(3) of the plaint alleged that: 7(1) The Plaintiff, at the request of the 1st Defendant, provided consultancy services in deriving the formula for calculating electrical energy; 7(2) The Plaintiff developed the formula for calculating electrical energy dissipated per second in a circuit element; 7(3) The Defendant (KPLC) gave the Plaintiff an assignment to review their Protective Multiple Earthing (PME) system, suggest alternatives and indicate the benefits. The 1st Defendant submitted that these paragraphs spelled out the entire complaint regarding contract, billing, metering and tariffs which related to distribution, supply and use of electrical energy regulated under the Energy Act, 2019. The 1st Defendant submitted that despite the drafting of the pleadings, the Plaintiff’s claim clearly fell within the context of the Energy Act 2019.
14. The 1st Defendant noted that in their Notice of Preliminary Objection, they urged the Court to dismiss the suit with costs on grounds of lack of jurisdiction under: Sections 3, 10; 11(e), (f), (i), and (k); 23; 24; 36; 40; 42; and 224(2)(e) of the Energy Act, 2019; Regulations 2, 4, 7, 9, and 21 of the Energy (Complaints and Disputes Resolution) Regulations, 2012; Articles 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 Actions Act, 2015.
15. The 1st Defendant further relied in the case of Isack Aliaza v. Samuel Kisiavuki [2021] eKLR, where the Court of Appeal held that jurisdictional questions must be addressed first before interrogating the merits.
16. The 1st Defendant cited Joseph Njuguna Mwaura & 2 Others v. Republic [2013] eKLR, where the Court of Appeal held that jurisdiction is the first hurdle a court must cross and courts have no jurisdiction over matters vested in other arms of government. The 1st Defendant referred to Equity Bank Limited v. Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, where the Court of Appeal ruled that the High Court cannot transfer a suit filed in a court lacking jurisdiction to a competent court, as an incompetent suit is dead and cannot be sanctified by transfer, consent, overriding objectives or judicial craftsmanship.
17. The 1st Defendant quoted Phoenix of EA Assurance Company Limited v. SM Thiga t/a Newspaper Service [2019] eKLR, emphasizing that a suit filed without jurisdiction is "dead on arrival" and must be withdrawn. The 1st Defendant cited Kenya Ports Authority v. Modern Holdings [E.A] Limited [2017] eKLR noting that jurisdiction can be raised at any stage. The 1st Defendant cited Kibos Distillers & 4 Others v. Benson Ambuti Adega & 3 Others [2020] eKLR, where the Court of Appeal held that litigants cannot confer or oust jurisdiction through drafting craft, original jurisdiction does not oust statutory bodies and multifaceted claims do not confer jurisdiction.
18. The 1st Defendant noted that when the above suit escalated to the Supreme Court, the apex court emphasized remitting disputes to relevant statutory bodies. The 1st Defendant cited Alvin Kamande Njenga v. Gacheru [2016] eKLR, reaffirming that failure to raise jurisdiction does not confer it. The 1st Defendant cited Lemita Ole Lemein v. Attorney General & 2 others [2020] eKLR, where the Court held that jurisdiction is omnipresent, courts can raise it suo motu and it cannot be conferred by consent or ignoring the issue. The 1st Defendant cited Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] KLR 1, where Justice Nyarangi held that jurisdiction is everything and without it, a court must down its tools immediately. The 1st Defendant referenced John Musakali v. Speaker County of Bungoma & 4 others [2015] eKLR , noting that while constitutional rights exist, courts must allow statutory institutions to carry out their mandates. The 1st Defendant cited Section 5 of the Civil Procedure Act, 2010 which limits court jurisdiction where cognizance is expressly or impliedly barred. The 1st Defendant cited Amy Kagendo Mate v. Prime Bank Credit Reference Bureau Africa Limited [2013] eKLR, where Ngugi J struck out a petition for bypassing statutory remedies.
19. The 1st Defendant submitted that under Section 5 of the Civil Procedure Act and the Energy Act, 2019, the dispute ought to be determined by the Energy & Petroleum Regulatory Authority (formerly ERC) or the Energy & Petroleum Tribunal as High Court jurisdiction is expressly barred.
20. The 1st Defendant restated Article 159(1) of the Constitution of Kenya, 2010 which vests judicial authority in courts and tribunals. The 1st Defendant noted Article 169(1)(d) which recognizes subordinate courts and local tribunals established by Parliament. The 1st Defendant submitted that the Energy Act 2019 was assented to on March 12, 2019, and came into force on March 28, 2019. The 1st Defendant noted Article 159(2)(c), which recognizes alternative dispute resolution mechanisms. The 1st Defendant submitted that Article 169(1)(d) recognizes Parliament's power to create tribunals for specific disputes.
21. The 1st Defendant submitted that EPRA and the Tribunal were created under these constitutional powers repealing the Energy Act, 2006. The 1st Defendant referenced Law Society of Kenya v. Centre for Human Rights and Democracy & 13 others [2013] eKLR regarding High Court jurisdiction being exercised in conformity with the Constitution. The 1st Defendant cited Joshua Sembei Mutua v. Attorney General & 2 others [2019] eKLR, where the Court of Appeal warned against interpretations creating absurdities regarding tribunal powers. The 1st Defendant submitted that it is a constitutional imperative that tribunals are vested with judicial authority in specialized areas.
22. The 1st Defendant submitted that Section 3(1) of the Energy Act, 2019 establishes that the Act prevails over other laws regarding electricity importation, generation, transmission, distribution, supply or use. The 1st Defendant cited Abidha Nicholus v. Attorney General & 7 others [2021] eKLR , affirming that the Energy Act, 2019 prevails over other statutory legislation. The 1st Defendant highlighted Section 2 definitions of "distribution," "supply," and "use of electrical energy". The 1st Defendant cited Section 9 (establishing EPRA) and Section 11, which gives EPRA power to investigate complaints/disputes and issue directions/orders.
23. The 1st Defendant cited Section 167(m) empowering the Cabinet Secretary to prescribe procedures for hearings and dispute settlements before EPRA.The 1st Defendant cited Section 224(2)(e), saving prior subsidiary legislation not inconsistent with the Act. The 1st Defendant stated that the Energy (Complaints and Dispute Resolution) Regulations, 2012 were gazetted on May 25, 2012. The 1st Defendant submitted that statutory sections read with Regulations 2, 4, 7, 9, and 21 give EPRA jurisdiction over such disputes. The 1st Defendant quoted Regulation 2, applying the regulations to any complaint/dispute regarding licenses, contracts, or matters under the Act. The 1st Defendant quoted Regulation 4, listing covered dispute areas including billing, metering, tariffs, quality of supply and electrical energy use. The 1st Defendant cited Regulations 7 and 9, which set out dispute reference and hearing procedures.
24. The 1st Defendant noted Regulation 21, establishing appeals to the Tribunal within 30 days. The 1st Defendant cited Sections 23 and 24 regarding decision timelines and appeal procedures. The 1st Defendant submitted that Parliament intended to deny the High Court original jurisdiction in energy sector matters. The 1st Defendant submitted that the complaint concerned formula derivation and PME system review under the Energy Act, 2019 making the suit premature as statutory remedies were ignored. The 1st Defendant cited Speaker of National Assembly v. Njenga Karume [1992] 1KLR 425 , holding that statutory procedures must be strictly followed. The 1st Defendant submitted that EPRA is the proper forum with jurisdiction to hear and grant relief in this matter .
25. In the alternative, the 1st Defendant submitted that Section 25 established the Tribunal and Section 36 conferred original civil jurisdiction on disputes between licensees and third parties, appellate jurisdiction over EPRA and power to grant equitable reliefs. The 1st Defendant quoted Section 2 definitions of "licensee" and "licence". The 1st Defendant stated that as a public utility company listed in the Third Schedule, it is a licensee and that the Plaintiff is a third party under the Act. The 1st Defendant noted Section 36(5) giving the Tribunal power to grant injunctions, damages and specific performance.
26. The 1st Defendant cited Section 37 which sets out review procedures and appeals to the High Court within 30 days. The 1st Defendant mentioned the gazzettement of the Energy Tribunal Rules, 2008 on 26 th September 2008. The 1st Defendant submitted that the Rules set out clear tribunal procedures. The 1st Defendant cited Cyrus Komo Njoroge v. Kiringa Njoroge Gachoka & 2 Others [2015] eKLR, reinforcing that statutory procedures must be strictly followed. The 1st Defendant submitted that under Section 36, the High Court lacks jurisdiction and that the matter belongs before the Tribunal.
27. The 1st Defendant contended that jurisdiction is further addressed by the Fair Administrative Action Act, 2015. The 1st Defendant cited Section 9(2) and (3) of the Fair Administrative Action Act, 2015 which prohibits courts from reviewing administrative actions until internal mechanisms are exhausted. The 1st Defendant contended that the Plaintiff claimed engagement regarding electrical formulas and PME systems. The 1st Defendant submitted that the dispute is in reality, a complaint pursuant to the Energy Act, 2019. The 1st Defendant cited Night Rose Cosmetics (1972) Ltd v. Nairobi County Government & 2 Others [2018] eKLR, stressing that the word "shall" in Section 9 imports a mandatory command. The 1st Defendant submitted that the Plaintiff deliberately bypassed EPRA and the Tribunal, citing Republic v. Energy Regulatory Commission & 2 Others [2018] eKLR regarding the duty to promote ADR.
28. The 1st Defendant cited Abidha Nicholus v. Attorney General & 7 others [2021] eKLR, where the court struck out a petition under Section 9(2) and (3) for lack of exhaustion. The 1st Defendant submitted it is settled that energy matters must be handled in alternative statutory forums. The 1st Defendant cited Mutanga Tea & Company Ltd v Shikara Limited & Another [2015] eKLR, highlighting that statutory bodies provide expert, expeditious and cost-effective resolution. The 1st Defendant cited Republic v. Public Procurement Administrative Review Board & Energy Sectors Contractors Association Ex parte KPLC [2020] eKLR, noting administrative functionaries are best equipped with technical expertise. The 1st Defendant referenced Judicial Review Application No. 74 of 2018 (Republic v. PPARB Ex-Parte Pelt Security Services [2018] eKLR) on the specialized nature of statutory review boards.
29. The 1st Defendant highlighted that courts are slow to assume discretion entrusted by statute to tribunals. The 1st Defendant cited Republic v. Energy Regulatory Commission & 2 others [2018] eKLR, where the High Court struck out a motion for failing to utilize the specialist Energy Tribunal. It further submitted that EPRA and the Tribunal consist of specialized experts under Sections 10, 11, 12, 13 and 26 of the Act. The 1st Defendant cited Geoffrey Muthinja & Another v. Samuel Muguna Henry & 1756 Others [2015] eKLR , affirming that courts should be forums of last resort under Article 159. The 1st Defendant cited Josiah Tatiya Kipelian v. Dr. David ole Nkadienye & 2 Others [2014] eKLR, stating courts have no business extending tentacles where dispute procedures exist. The 1st Defendant submitted that the Plaintiff failed to exhaust Energy Act mechanisms, inviting the court to improperly assume jurisdiction. The 1st Defendant submitted that filing this suit constituted an abuse of court process. The 1st Defendant humbly submitted that the Court lacks jurisdiction to entertain the suit at first instance.
30. The 1st Defendant defined the Doctrine of Exhaustion using Black’s Law Dictionary (10th Edition) as requiring claimants to seek relief from administrative bodies first. The 1st Defendant asserted that the doctrine is deeply entrenched in Kenya. The 1st Defendant cited Speaker of National Assembly v. Njenga Karume and Albert Chaurembo Mumba, emphasizing that statutory procedures must be strictly followed absent exceptional circumstances. The 1st Defendant submitted that the Energy Act, 2019 provides complete remedies. The 1st Defendant submitted that the Plaintiff failed to show that statutory steps were exhausted and that the Plaintiff attempted to camouflage a statutory energy complaint as a civil issue. The 1st Defendant cited Secretary, County Public Service Board & another v. Hulbhai Gedi Abdille [2017] eKLR, holding that bypassing statutory appeal procedures without exceptional circumstances is improper. The 1st Defendant cited Martin Kabubii Mwangi v. County Government of Laikipia [2019] eKLR, reinforcing that exhaustion removes litigant discretion. The 1st Defendant reiterated that the suit arose from formula calculations and PME system reviews. The 1st Defendant submitted that claims fall squarely under the Energy Act, 2019.
31. The 1st Defendant further cited extensive case law holding that energy claims must follow statutory processes. The 1st Defendant cited Leonard Jefwa Inalama & Another v. Consolidated Bank of Kenya & 3 others [2014] eKLR regarding adherence to due process of law under Article 10. The 1st Defendant submitted that the suit is an abuse of process. The 1st Defendant pointed out that exhaustion promotes efficiency and reduces court workloads. It also quoted the US Supreme Court in McCarthy v. Madigan 503 U.S. 140 [1992] on agency delegation and primary responsibility. The 1st Defendant noted Section 36 of the Energy Act outlines the primary administrative remedy and placed reliance In the Matter of the Mui Coal Basin Local Community [2015] eKLR on the constitutional policy of fitting the fuss to the forum rather than maintaining an "Imperial Judiciary".
32. The 1st Defendant also cited William Odhiambo Ramogi & 3 others v. Attorney General & 4 others [2020] eKLR (5-Judge Bench), explaining the doctrine’s judicial lineage. It also cited the case of Kenya Pipeline Company Limited v. Hyosung Ebara Company Limited & 2 others [2012] eKLR regarding deference to specialized tribunals as well as the case of United Millers Limited v. Kenya Bureau of Standards [2021] eKLR, where constitutional claims were nipped in the bud due to failure to exhaust statutory remedies. Also in Kibos Distillers Limited v. Benson Ambuti Adega [2020] eKLR, where the Supreme Court struck out a petition for failure to pursue statutory tribunals.
33. The 1st Defendant also cited the UK decision in Oyekan v. Secretary of State for the Home Department [2016] EWCA Civ 1352, upholding exhaustion principles. The 1st Defendant acknowledged that exhaustion is subject to exceptions, quoting Krystalline Salt Limited v. Kenya Revenue Authority [2019] eKLR regarding "exceptional circumstances".
34. The 1st Defendant quoted the South African Constitutional Court decision in Koyabe & others v. Minister for Home Affairs 2010 (4) SA 327 (CC). The 1st Defendant submitted that the present matter does not fall under any exception and went ahead to submit that the burden of proving insufficiency shifts to the Plaintiff, which has not been met. The 1st Defendant submitted that EPRA is the prescribed initial forum. The 1st Defendant submitted that formula derivations and PME reviews are highly technical matters best suited for EPRA or the Tribunal under Sections 13 and 26. The 1st Defendant submitted that taking up this technical matter would intrude on statutory jurisdiction, erode institutional mandates and cause public waste. The 1st Defendant submitted that the suit contravenes the Doctrine of Exhaustion and should be dismissed.
35. The 1st Defendant summarized that EPRA holds primary jurisdiction over the complaint. It submitted that the Tribunal holds power to grant equitable reliefs under Section 36(5). The 1st Defendant submitted that settled jurisprudence dictates that energy complaints must first be presented to EPRA or the Tribunal. The 1st Defendant cited Nicholus v. Attorney General & 14 others (Civil Appeal 42 of 2021) [2023] KECA 34 (KLR), where the Court of Appeal confirmed the three-tiered resolution structure (EPRA → Tribunal → High Court). The 1st Defendant submitted that superior courts have spoken with near unanimity. The 1st Defendant cited Asitiba v. Energy & Petroleum Regulatory Authority & 2 others [2025] KEHC 8541 (KLR), where the High Court struck out a petition for failing to exhaust Section 36(4) remedies. The 1st Defendant cited Abidha Nicholus v. Attorney General & 7 others [2021] eKLR, confirming Section 9 of the Fair Administrative Action Act removes such disputes from the High Court. The 1st Defendant cited Anthony Mwangi Ng'ang'a & 35 others v. Kenya Urban Roads Authority & 6 others [2021] eKLR, where improper suits were struck out.
36. The 1st Defendant cited Nyagudi v. Agricultural Finance Corporation & 2 others [2023] KEHC 1322 (KLR), where the High Court upheld a preliminary objection on identical grounds. The 1st Defendant cited Makoffu v. Kenya Power & Lighting Co. Ltd [2023] KEHC 17974 (KLR), where the High Court struck out a petition and motion for lack of jurisdiction under the doctrine of exhaustion. The 1st Defendant cited Philip Okoth & LSK v. Board of Management St. Annes Primary School, Ahero & others (CA No. 173 of 2020), emphasizing that trial courts are bound by controlling precedents. The 1st Defendant urged the Court to respect statutory bodies, clear case backlogs and promote expeditious justice under Article 159.
37. The 1st Defendant quoted the Supreme Court in Bernard Murage v. Fine Serve Africa Limited & 3 Others [2015] eKLR on pursuing statutory remedies first. The 1st Defendant re-emphasized Speaker of the National Assembly v. Karume [2008] 1KLR 425. The 1st Defendant cited Esther Gachambi Mwangi v. Samuel Mwangi Mbiri [2013] eKLR , stating that courts must down tools when lacking jurisdiction. The 1st Defendant urged the Court to find it lacks jurisdiction and dismiss the matter with costs.
38. The 1st Defendant cited Section 27(1) of the Civil Procedure Act (Cap 21), stating costs follow the event. The 1st Defendant cited Kenya Sugar Board v. Ndungu Gathini [2013] eKLR. The 1st Defendant cited Joseph Nzyoki Mwanthi v. Kenya Power & Lighting Co. Ltd [2017] eKLR, where an appeal against dismissal for lack of energy jurisdiction was dismissed with costs. The 1st Defendant submitted that the Plaintiff prematurely dragged them to court despite knowing the statutory procedures. The 1st Defendant submitted that they expended considerable resources and ought to be compensated with costs. The 1st Defendant cited Cecilia Karuru Ngayu v. Barclays Bank of Kenya & Another [2016] eKLR, confirming costs compensate successful parties.
39. The 1st Defendant cited Party of Independent Candidate of Kenya v. Mutula Kilonzo & 2 others confirming judicial discretion in awarding costs. The 1st Defendant urged the Court to be guided by these authorities. The 1st Defendant concluded that statutory sections and regulations as backed by Speaker of National Assembly and Nicholus v. AG, establish a clear process starting with EPRA, then the Tribunal and finally the High Court. The 1st Defendant submitted that this represents settled jurisprudence. The 1st Defendant submitted that the suit exclusively falls under EPRA's jurisdiction. The 1st Defendant prayed that the suit against them be dismissed in its entirety with costs. The 1st Defendant invoked the doctrine of precedent ( stare decisis et non quieta movere ), inviting the court to follow cited decisions and their List of Authorities dated April 30, 2026.
40. I have considered the preliminary objection and the written submissions filed by the respective parties. I am of the view that the issue for determination is whether this court has jurisdiction to hear and determine the suit filed by the plaintiff
41. Law, J.A. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 stated as follows: “So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which raises by clear implication out of pleadings and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...’’
42. Also, the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that:
“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.
43. Therefore, the 1st Defendant's objection which is based on a question of jurisdiction is properly before this Court as a preliminary objection.
44. The doctrine of exhaustion is a well-established principle in Kenyan jurisprudence. It dictates that where a statute provides a specific procedure for the redress of a grievance, that procedure must be strictly followed before a court of law can be approached. The Court of Appeal in Speaker of the National Assembly v. Njenga Karume [1992] 1 KLR 425 held that "where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed"
45. This doctrine is also anchored in the Constitution. Article 159(2)(c) mandates courts to promote alternative forms of dispute resolution. Furthermore, Section 9(2) and (3) of the Fair Administrative Action Act, 2015 provides that courts shall not review administrative action unless the mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
46. The Supreme Court in Albert Chaurembo Mumbu & 7 others v. Maurice Munyao & 148 others [2019] eKLR and United Millers Ltd v. Kenya Bureau of Standards & 5 Others [2021] eKLR has consistently emphasized that courts must exercise restraint and give deference to dispute resolution bodies established by statutes.
47. The Energy Act, 2019 establishes a comprehensive framework for dispute resolution in the energy sector. Section 11(i) of the Act empowers EPRA to "investigate and determine complaints or disputes between parties over any matter relating to licences and licence conditi
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