1.The defendant in this suit, Kenya power & lighting company limited has raised a preliminary objection on the grounds that this court lacks jurisdiction to hear and determine the suit as against it as the same offends the provisions of sections 3(1), 10, 11(e) (f), (i), (k) & (l); 23; 24;36;40; 42; and 224(2) ( e) of the Energy Act, 2019 together with Regulations 2, 4, 7 & 9 of the Energy Act (Complaints and Dispute Resolution ) Regulations, 2012 as read together with art 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.
2.The plaintiffs’ case as set out in the plaint dated the July 14, 2022 against the defendant is that the defendant without their consent has encroached and trespassed on their properties namely plot no 144 Makongeni/Kisii Deacons; Thika/Mun/Block 38/104; Thika/Mun plot No 425A; Thika/ Mun/Block38/206; Thika Mun Block 38/205; Thika/Mun plot no 396 and Thika/Mun 38/106 (hereinafter called the suit lands) and erected electricity posts and high voltage power lines without their consent, notice to acquire the necessary wayleaves and easement under the law and compensation. To add salt to a sore injury, the plaintiffs aver that the defendant has now issued them with infringement notices to remove their structures lying on the suit properties. That the activities of the defendant have limited the utility values of their land in terms of further developments. The plaintiffs aver that the erection of the power lines across their land was unnecessary as there is a designated way leaves trace nearby that would have served the purpose.
3.The plaintiffs have moved the court for prayers set out thus;a.A declaration that the defendants actions amount to illegal trespass on the suit landsb.An order directing the restoration of the plaintiffs suit land in its prior status as existing prior to erection of the electricity poles and high voltage power lines through the suitc.Permanent injunction against the defendants restraining it either by itself its agent’s offices employees servants or any body or authority from interfering in any way with the plaintiffs quiet user occupation and possession of the land.d.General damages for trespass and psychological harm and mesne profits.e.Costs of the suit.
4.The defendant in its statement of defence dated the November 1, 2022 denied the plaintiffs’ claims and contend that the suit lacks merit, fatally defective and devoid of a primafacie case hence the preliminary objection.
5.Directions were taken before the court where parties elected to canvass the preliminary objection by way of written submissions. Parties have complied and the court has had the opportunity to peruse the said filed written submissions.
6.The issue for determination is whether the preliminary objection is merited. put it differently is whether the court has jurisdiction to hear and determine the plaintiffs suit against the defendant in view of the existence of the provisions in the Energy Act.
8.In the case of Owners of Motor Vessel Lilian S v Caltex Oil Kenya Ltd  KLR the court was clear that where there is a contention on jurisdiction of a court the court ought to halt its tracks and determine the objection and if it finds that it is bereft of jurisdiction, must take no further steps but down its tools.
9.Jurisdiction of a court is a creature of the law. In the matter of the interim independent electoral commission (applicant), constitutional application number 2 of 2011 the court stated that where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can parliament confer jurisdiction upon a court of law beyond the scope defined by the constitution. Where the constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
10.It is trite that the jurisdiction of a court flows from either the constitution or legislation or both and a court of law can only exercise jurisdiction as conferred by the constitution or written law. It cannot arrogate to itself jurisdiction in excess of that which is conferred upon it by law. See the case of Samuel Kamau Macharia & Anor v Kenya Commercial Bank Limited & 2 others  eKLR.
12.The jurisdiction of this court is set out in article 162 (2) of the Constitution as follows;
13.Further its mandate is laid out in section 13 of the Environment and Land Court Act asfollows:-
14.Even where a court has original and appellate jurisdiction like in the case of this court, the court ought to exercise judicial restraint where applicable. In the case of Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others  eKLR the court held that judicial abstention, as with judicial restraint, is a doctrine not founded in Constitutional or statutory provisions, but one that has been established through common law practice. It provides that a court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism.
15.The Energy Act No 1 of 2019 is an act of parliament to consolidate the laws relating to energy, to provide for national and county government functions in relation to energy, to provide for the establishment, powers and functions of the energy sector entities; promotion of renewable energy; exploration, recovery and commercial utilization of geothermal energy; regulation of midstream and downstream petroleum and coal activities; regulation, production, supply and use of electricity and other energy forms; and for connected purposes.
16.Section 25 of the said act establishes the energy and petroleum tribunal for the purpose of hearing and determining disputes and appeals in accordance with this Act or any other written law. The jurisdiction of the tribunal is set out under section 36 of the said act as follows;
17.Flowing from the above it shows that the tribunal has both original and appellate jurisdiction to hear and determine any dispute between a licensee and a third party and over the decisions of the energy & petroleum regulatory authority and other licensing authorities respectively. Going by the preamble of the act the defendant falls within the definition of a licensee and for the case in dispute the relevant part is the distribution of electric power.
18.The plaintiff’s case is that the defendant has entered into the suit land and erected poles and high voltage electric wires over their parcels without their consent and that the said erection is limiting their utilization of the land including development. Is this the kind of dispute contemplated to be referred to the tribunal as set out in the act? my reading of section 36 of the act read together with regulation 4 of shows that any dispute relating to way leaves easements or rights of way in relation to transmission distribution supply and use of electrical energy is one of the disputes contemplated by the Act.
19.I find that the plaintiffs dispute is such dispute that falls for determination under the act and going with the principle of judicial restraint or abstention the court shall down its tools. This is to give effect to the principle of law that where parliament has decreed an agency of government to carry out an act, that agency must be allowed to do so without led or hinderance to allow exhaustion of dispute resolution mechanisms. See the case of Speaker of the National Assembly v Njenga Karume  KLR which emphasized the point as thus;
20.The court notes that the prayers of the plaintiffs fall within the remedies available under section 36(5) of the act such as damages injunctions and specific performance. In my view the plaintiffs do not stand to be prejudiced if the matter is referred to the tribunal for hearing and determination.
21.In the upshot I find the preliminary objection has merit. it is allowed with the consequence that the suit is struck out. The plaintiff retains the liberty to lodge his complaint against the defendant with the appropriate entity under the provisions of the Energy Act as desired.
22.Each party to meet their costs
23.It is so ordered.