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ELCDismissedELCLA Appeal No E026 of 2024 & ELCLA Appeal No E027 of 2024 (Consolidated)

Kenya Electricity Transmission Company Limited v Matthew (Environment and Land Appeal E026 & E027 of 2024 (Consolidated)) [2025] KEELC 4878 (KLR)

Environment and Land Court
26 June 2025
8,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Land Acquisition Tribunal — not the energy regulator or arbitrators — decides wayleave compensation disputes, and KETRACO's appeal failed.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi, per O. A. Angote J, dismissed two consolidated appeals (ELCLA E026 and E027 of 2024) against rulings of the Land Acquisition Tribunal in Case No E005 of 2023. The first ruling rejected the Appellant's (KETRACO's) Preliminary Objection challenging the Tribunal's jurisdiction; the second declined to stay the proceedings and refer the dispute to arbitration under Section 6(1) of the Arbitration Act. The dispute concerned the Respondent's claim for compensation for structures on his land traversed by a KETRACO transmission line wayleave. The court held that Section 175 of the Energy Act defers wayleave compensation disputes to the relevant written law, which is the Land Act, whose Section 133C(6) confers first-instance jurisdiction on the Land Acquisition Tribunal; Section 3(1) of the Energy Act prevails only on technical energy matters, and the 2012 EPRA Regulations, being subsidiary legislation, could not oust that jurisdiction. Abidha Nicholus was distinguished. On arbitration, the court held that filing a Preliminary Objection other than on arbitrability constituted a procedural step and waiver of the right to arbitrate, and the Motion was also filed outside the strict timing required by Section 6(1). On the 60-day timeline in Section 133C(3), the court held, purposively, that the Tribunal's failure to formally extend time did not vitiate its decision absent demonstrated prejudice. Both appeals were dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the Tribunal erred in finding that it had jurisdiction to entertain the matter?
  2. 2.Whether the Tribunal erred in finding that the Appellant was barred from seeking a stay of proceedings under Section 6(1) of the Arbitration Act, 1995 on grounds that it had taken steps in the proceedings?
  3. 3.Whether the Tribunal's actions in dismissing the Appellants' Application after the 60-day limit prescribed under Section 133C (3) of the Land Act, 2012, without first extending the period constitutes a nullity?

Key legal issues

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01

Jurisdiction of the Land Acquisition Tribunal over wayleave compensation disputes versus EPRA under the Energy Act

Holding

The Tribunal properly assumed jurisdiction; Section 175 of the Energy Act defers compensation disputes to the relevant written law, which is the Land Act, and Section 133C(6) vests first-instance jurisdiction in the Tribunal

Reasoning

The court undertook a contextual and purposive reading of Section 175 of the Energy Act, concluding that wayleave compensation disputes are deferred to the Land Act regime. Section 3(1) of the Energy Act prevails only on technical and operational energy matters, not compensation adjudication. The 2012 Energy (Complaints and Dispute Resolution) Regulations, being subsidiary legislation, could not confer jurisdiction on EPRA inconsistent with the parent statutes. Abidha Nicholus was distinguishable as it concerned exhaustion, not the Tribunal's jurisdiction.

p. 10
02

Whether filing a Preliminary Objection constitutes a procedural step barring a Section 6(1) Arbitration Act stay application

Holding

Yes; the filing of a Preliminary Objection challenging jurisdiction (other than on arbitrability) amounts to a procedural step and waiver of the right to arbitration, and the Motion was also filed out of time

Reasoning

Relying on Yooshin Engineering Corporation v AIA Architects and Mount Kenya University v Step Up Holding, the court adopted a strict and purposive interpretation of Section 6(1), requiring a stay application to be filed concurrently with entry of appearance and before any other step. A Preliminary Objection that goes beyond arbitrability engages the merits and submits the party to the forum. The Motion filed after the Preliminary Objection was therefore out of time.

p. 13
03

Whether the Tribunal's decision outside the 60-day timeline under Section 133C(3) of the Land Act was a nullity

Holding

No; the timelines are directory rather than mandatory and the failure to formally extend time under Section 133C(4) did not extinguish the Tribunal's jurisdiction absent demonstrated prejudice

Reasoning

Guided by Crown Beverages v MFI Document Solutions and Biosystems Consultants v Nyali Links Arcade, the court held that statutory timelines should be interpreted purposively in light of access to justice and finality. Section 133C(4) empowers extension for sufficient cause, but no provision renders non-extension fatal to jurisdiction. The Appellant demonstrated no prejudice, inordinate delay, or bad faith.

p. 16

Legal principles established

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  • Disputes relating to creation of wayleaves and compensation therefor must, in the first instance, be referred to the Land Acquisition Tribunal under Section 133C(6) of the Land Act
  • Subsidiary legislation cannot confer jurisdiction inconsistent with or beyond the parent statute
  • An application under Section 6(1) of the Arbitration Act must be made not later than the time of entering appearance, and taking any other step including a Preliminary Objection amounts to waiver of the right to arbitration
  • Failure by a tribunal to determine a matter within the 60-day timeline under Section 133C(3) of the Land Act does not, without demonstration of prejudice, render its decision a nullity

Court orders

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  1. 1.The two Appeals are dismissed with costs

The bench

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

majority

Wrote the judgment

On appeal from
Land Acquisition Tribunal
E005 of 2023
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13(4) of the Environment and Land Court Act, 2011 and Section 133D of the Land Act
Consolidated with
ELCLA Appeal No E027 of 2024, ELCLA Appeal E026 of 2024

Relief refused

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Setting aside of the Tribunal's Rulings of 31st January 2024 and 22nd February 2024

Both appeals found unmerited; the Tribunal had jurisdiction under Section 133C(6) of the Land Act and correctly declined referral to arbitration

p. 16

Stay of proceedings and reference of the dispute to arbitration

The filing of the Preliminary Objection amounted to a procedural step and the Motion was not filed timeously under Section 6(1) of the Arbitration Act

p. 13

Costs

The two Appeals dismissed with costs to the Respondent

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.

In the end, the court finds the two Appeals to be unmerited and the same are hereby dismissed with costs.
p. 16Final orders/disposition
Accordingly, the court is satisfied that the Tribunal acted within its statutory mandate. The dispute before it concerned compensation for the creation of a wayleave, a matter falling squarely within the jurisdiction of the Land Acquisition Tribunal under Section 133 C (6) of the Land Act.
p. 10Jurisdiction of the Land Acquisition Tribunal
Consequently, to the extent that any provision in the 2012 regulations purports to confer on EPRA jurisdiction over wayleave compensation disputes, it would be inconsistent with the express provisions of both the Energy Act and the Land Act, and is therefore without legal efiect.
p. 9Limits of subsidiary legislation
The failure to do so whether by filing a statement of defence, a response, or indeed a Preliminary Objection that calls for a ruling on the Tribunal's jurisdiction, other than an objection in reference to arbitrability of the matter, amounts to a waiver of the right to arbitration and the Tribunal cannot be faulted in so finding.
p. 13Waiver of arbitration right under Section 6(1)
this court rejects the contention that the Tribunal's failure to make a determination within 60 days renders the decision and proceedings a nullity.
p. 16Effect of breach of statutory timelines

Issues in the judgment

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minor

The parcel of land is inconsistently described in the judgment: the Grant of Easement relates to 'Nanyuki/Marura Block/5647 (Nturukuma)' while the compensation claim concerns 'L.R No Nanyuki/Kimaru/Block 8/5467 Nturukuma'

minor

The Supreme Court decision in Abidha Nicholus is described as having overturned the Court of Appeal decision, yet the Appellant urged the Tribunal to follow the Court of Appeal decision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Electricity Transmission Company Limited v Matthew (Environment and Land Appeal E026 & E027 of 2024 (Consolidated)) [2025] KEELC 4878 (KLR)", Case Analysis (2025). ELCLA Appeal No E026 of 2024 & ELCLA Appeal No E027 of 2024 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4878/eng@2025-06-26

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