Omollo v Kenya Power and Lighting Company PLC & another (Environment and Land Appeal E077 of 2025) [2026] KEELC 5354 (KLR)
The bottom line
#Landowners disputing Kenya Power power lines must first use the Energy Act's complaint process and the Energy Tribunal before going to court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection was properly taken and whether the trial court had jurisdiction to hear and determine the suit
- 2.Whether the Interested Party's failure to determine the Appellant's complaint within sixty days exhausted the statutory dispute resolution mechanism and conferred jurisdiction on the trial court
- 3.Whether the striking out of the suit offended Article 159(2)(d) of the Constitution and the overriding objective
- 4.What orders should issue, including on costs
Key legal issues
#Nature of the dispute and jurisdiction of the trial court
The suit was in pith and substance a wayleave dispute governed by Part VII of the Energy Act, 2019 and the Energy (Complaints and Dispute Resolution) Regulations, 2012; the trial court rightly lacked jurisdiction
Although framed in trespass, breach of statutory duty and violation of fundamental rights, the Plaint pleaded entry onto land by a licensee, erection of a 3-phase power line without consent, and sought compensation for the creation of a wayleave. Regulation 4(a) expressly applies the Regulations to wayleave, easement and rights-of-way disputes. The Court of Appeal's binding decision in Abidha Nicholus establishes the three-tier mechanism: EPRA, then the Energy and Petroleum Tribunal, then the superior courts.
Effect of the Interested Party's failure to determine the complaint within sixty days
Section 23(5) expressly provides for an appeal to the Tribunal upon the Authority's default; 'may' does not permit election of a forum outside the statutory scheme
The legislature anticipated the mischief of the Authority's default and provided the corrective in Section 23(5) - an appeal to the Tribunal within seven days of the expiry of the sixty days. The permissive 'may' confers a discretion whether to pursue the grievance at all, not a licence to elect another forum. The Fleur Investments exception was not engaged because mere administrative delay was shown, with no demonstration that the Tribunal could not afford an efficacious remedy under Sections 36(3) and 36(5).
Whether Article 159(2)(d) and the overriding objective saved the suit
No - jurisdiction is not a procedural technicality, and the trial court acted in fidelity to the Constitution in downing its tools
Article 159(2)(d) was never intended to oust compliance with jurisdictional prerequisites. The trial court did not strike out the suit on a point of form but because Parliament had assigned the dispute to another forum. Article 159(2)(c) itself commands promotion of alternative and statutory dispute resolution mechanisms, and Articles 169(1)(d) and (2) recognise Parliament's tribunals.
Propriety of the Preliminary Objection
The objection was properly taken as a pure point of law, the relevant facts being pleaded in the Plaint and not in contest
An objection to jurisdiction is the quintessential preliminary objection. The facts on which the objection was determined - the nature of the claim, the erection of the power line, and the letters of 3rd September and 4th October 2024 - were all pleaded in the Plaint itself and were not in contest, satisfying the Mukisa Biscuit formulation.
Whether the letter of 4th October 2024 was a valid complaint under Regulation 9
The Court declined to determine this threshold contention, assuming the Appellant's case at its highest
Determining whether the letter met Regulation 9's formal requirements would require an inquiry into facts, which has no place in the determination of a preliminary objection where pleaded facts must be assumed correct. Since the appeal would fail even on the assumption that the letter was a valid complaint which set the sixty-day period running, it was unnecessary to resolve the contention.
Legal principles established
#- Where a statute prescribes a special procedure for the resolution of a class of disputes, that procedure must be strictly followed before recourse to the ordinary courts
- Inaction by a statutory dispute-resolution body does not vest an ordinary civil court with jurisdiction channelled elsewhere by statute; the remedy is escalation within the scheme or judicial review
- Article 159(2)(d) and the overriding objective cannot cure the absence of jurisdiction
Court orders
#- 1.The Appeal dated 11th August 2025 is hereby dismissed
- 2.The Ruling of Hon. A. K. Makoross (SPM) delivered on 25th July 2025 in Tamu MCELC No. E010 of 2025 is hereby upheld
- 3.The costs of the Appeal are awarded to the Respondent and the Interested Party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Tamu
- Tamu MCELC No. E010 of 2025
- Jurisdiction invoked
- First appeal from the magistrates' court under the Environment and Land Court's appellate jurisdiction
Relief refused
#Setting aside the trial court's Ruling of 25th July 2025
The dispute is in pith and substance a wayleave dispute within the Energy Act dispute resolution mechanism, which was not exhausted
Declaration that the Appellant exhausted the statutory dispute resolution mechanism by his letter dated 4th October 2024
The statutory remedy for the Authority's inaction is an appeal to the Energy and Petroleum Tribunal under Section 23(5), not an ordinary suit
Costs
Costs of the Appeal awarded to the Respondent and the Interested Party; the trial court's costs order (costs to the Respondent and the Interested Party) remains undisturbed.
Quotable passages
#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 Appeal dated 11th August 2025 is hereby dismissed
The Ruling of Hon. A. K. Makoross (SPM) delivered on 25th July 2025 in Tamu MCELC No. E010 of 2025 is hereby upheld
The costs of the Appeal are awarded to the Respondent and the Interested Party.
Where Parliament has prescribed a special procedure for the resolution of a particular class of disputes, that procedure must be strictly followed.
Jurisdiction is conferred by the Constitution and statute; it is not acquired by estoppel, acquiescence or the default of an administrative body.
A court either has jurisdiction or it does not; where it does not, no invocation of the overriding objective can create it.
The Appellant remains at liberty to pursue his complaint before the Energy and Petroleum Tribunal pursuant to Sections 23(5) and 36(3) of the Energy Act, 2019, or to re-agitate the complaint before the Interested Party, subject to any questions of time which shall be for that forum to determine.
Issues in the judgment
#Numbering of the judgment's paragraphs is irregular; it jumps from paragraph 36 to paragraph 41
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omollo v Kenya Power and Lighting Company PLC & another (Environment and Land Appeal E077 of 2025) [2026] KEELC 5354 (KLR)", Case Analysis (2026). ELCA No. E077 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5354/eng@2026-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.