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ELCPartially AllowedVihiga ELC Appeal arising from Vihiga PMC ELC Case No. 34 of 2023

Kenya Power & Lighting Company v Odongo (Environment and Land Appeal E001 of 2023) [2024] KEELC 4942 (KLR)

Environment and Land Court
13 June 2024
EAE. Asati
3,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Land disputes with Kenya Power over power poles must first go to the Energy and Petroleum Tribunal; the magistrate's court cannot hear them.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Vihiga against a ruling of the Principal Magistrate's Court delivered on 25 September 2023 dismissing the Appellant's preliminary objection in Vihiga PMC ELC Case No. 34 of 2023. The underlying suit, filed by the Respondent, sought removal and relocation of electricity supply poles and cables allegedly erected over land parcel Bunyore/Ekwanda/1139. The Appellant objected that the magistrate's court lacked jurisdiction because disputes concerning electricity way leaves, easements and rights-of-way fall under the Energy Act, 2019 and the Energy (Complaints and Dispute Resolution) Regulations 2012, with the Energy and Petroleum Regulatory Authority as the first port of call and the Energy and Petroleum Tribunal exercising original civil jurisdiction over licensee–third party disputes. The Appellant relied heavily on the Court of Appeal decision in Nicholus v Attorney General on exhaustion of statutory remedies. E. Asati J identified a single issue: whether the trial court erred in finding it had jurisdiction. The court held that disputes over way leaves and easements are expressly covered by Regulation 4 and that under sections 11(i) and 36 of the Energy Act the Tribunal has original jurisdiction; the Respondent had not exhausted that mechanism. The trial court's failure to consider the submissions and statutory provisions rendered its decision erroneous. The appeal was allowed: the trial ruling was set aside and substituted with an order upholding the preliminary objection and striking out the suit for want of jurisdiction, with each party bearing own costs of the suit and the appeal given that the substantive complaint remains unheard.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether or not the trial court erred in law and fact in holding that she had jurisdiction to handle the suit and thereby dismissing the preliminary objection.

Key legal issues

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Jurisdiction of the magistrate's court over disputes concerning electricity way leaves, easements and rights-of-way under the Energy Act, 2019

Holding

The magistrate's court lacked jurisdiction; such disputes fall within the original jurisdiction of the Energy and Petroleum Tribunal and the statutory dispute resolution mechanism had to be exhausted first.

Reasoning

The suit concerned the positioning of power supply poles and cables and whether the appellant had way leaves or overriding interests over the respondent's land. Regulation 4 of the Energy (Complaints and Dispute Resolution) Regulations 2012 expressly covers way leaves, easements and rights-of-way. Section 36(3) of the Energy Act confers original civil jurisdiction over licensee–third party disputes on the Tribunal, and section 11(i) mandates the Authority to investigate and determine complaints relating to licences. The respondent did not resort to that mechanism.

p. 6
02

Duty of a first appellate court

Holding

A first appellate court must re-examine and analyse the evidence before the trial court and arrive at its own independent conclusions.

Reasoning

Relying on section 78 of the Civil Procedure Act and Selle v Associated Motor Boat Company Ltd, the court restated that it is not bound by the findings of the court below and must re-evaluate the evidence afresh.

p. 5
03

Whether the trial court considered the appellant's submissions and statutory provisions on jurisdiction

Holding

The trial court erred by failing to refer to the appellant's submissions or the provisions of law cited therein before assuming jurisdiction.

Reasoning

The record showed that the statutory framework and authorities were placed before the trial court through submissions, yet the ruling made no reference to them and simply concluded that it had jurisdiction, rendering the decision erroneous.

p. 7

Legal principles established

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  • Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed before resorting to court.
  • The Energy and Petroleum Tribunal has original civil jurisdiction over disputes between a licensee and a third party, including disputes over way leaves and easements, which must be exhausted before approaching the court.

Court orders

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  1. 1.The ruling of the trial court dated 25/9/2023 dismissing the appellant's preliminary objection is set aside and substituted with an order upholding the preliminary objection and striking out the suit for lack of jurisdiction on the part of the trial court.
  2. 2.Each party to bear own costs of the suit and the appeal herein.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EA
majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Vihiga
Vihiga PMC ELC Case No. 34 of 2023
Jurisdiction invoked
First appeal under section 78 of the Civil Procedure Act (appeal from the Magistrate's Court ruling on a preliminary objection)

Relief refused

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Costs of the suit and the appeal to the Appellant

The Respondent's complaint is yet to be heard substantively, so the court found it in the interest of justice that each party bear own costs

p. 7

Costs

Each party to bear own costs of the suit and the appeal herein.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The ruling of the trial court dated 25/9/2023 dismissing the appellant's preliminary objection is hereby set aside and substituted with an order upholding the preliminary objection and striking out the suit for lack of jurisdiction on the part of the trial court.
p. 7Final orders - appeal allowed; suit struck out for want of jurisdiction
Each party to bear own costs of the suit and the appeal herein.
p. 7Costs order
The Respondent ought to have exhausted the dispute Resolution Mechanism provided by the Act and the Regulations before approaching the court.
p. 7Doctrine of exhaustion
where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
p. 7Statutory dispute resolution procedure must be strictly followed

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Power & Lighting Company v Odongo (Environment and Land Appeal E001 of 2023) [2024] KEELC 4942 (KLR)", Case Analysis (2024). Vihiga ELC Appeal arising from Vihiga PMC ELC Case No. 34 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4942/eng@2024-06-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.