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ELCDismissedELCA No. E077 of 2025

Omollo v Kenya Power and Lighting Company PLC & another (Environment and Land Appeal E077 of 2025) [2026] KEELC 5354 (KLR)

Environment and Land Court
31 August 2026
5,365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This first appeal in the Environment and Land Court at Kisumu challenged a ruling of Hon. A. K. Makoross (SPM) in Tamu MCELC No. E010 of 2025, which upheld a preliminary objection, held that the trial court lacked jurisdiction, and struck out the Appellant's suit with costs. The Appellant had sued over the Respondent's alleged wrongful entry on his land parcel Muhoroni Township/Shauri Moyo/1024 and erection of a 3-phase power line without consent or compensation, pleading trespass, breach of statutory duty and violation of fundamental rights. The Appellant argued that his complaint letter to the Interested Party (EPRA) of 4th October 2024, coupled with the Authority's failure to decide within the sixty days prescribed by Section 23(1) of the Energy Act, 2019, exhausted the statutory mechanism and opened the ordinary courts to him; that 'may' in Section 23(5) made recourse to the Energy and Petroleum Tribunal optional; and that striking out the suit offended Article 159(2)(d) and the overriding objective. Wabwoto J held that the dispute was in pith and substance a wayleave dispute governed by Part VII of the Energy Act and the Energy (Complaints and Dispute Resolution) Regulations, 2012, and that the binding three-tier mechanism in Abidha Nicholus required resolution first by EPRA, then the Tribunal. The Court held that Section 23(5) itself supplies the remedy for the Authority's default, that 'may' does not license election of an outside forum, that the Fleur Investments exception was not engaged on mere delay, and that Article 159(2)(d) cannot cure absence of jurisdiction. The appeal was dismissed, the trial court's ruling upheld, and costs awarded to the Respondent and the Interested Party, with the Appellant left at liberty to pursue the Tribunal or judicial review.

Questions the Court framed

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

  1. 1.Whether the Preliminary Objection was properly taken and whether the trial court had jurisdiction to hear and determine the suit
  2. 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. 3.Whether the striking out of the suit offended Article 159(2)(d) of the Constitution and the overriding objective
  4. 4.What orders should issue, including on costs

Key legal issues

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01

Nature of the dispute and jurisdiction of the trial court

Holding

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

Reasoning

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.

p. 20
02

Effect of the Interested Party's failure to determine the complaint within sixty days

Holding

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

Reasoning

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).

p. 26
03

Whether Article 159(2)(d) and the overriding objective saved the suit

Holding

No - jurisdiction is not a procedural technicality, and the trial court acted in fidelity to the Constitution in downing its tools

Reasoning

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.

p. 29
04

Propriety of the Preliminary Objection

Holding

The objection was properly taken as a pure point of law, the relevant facts being pleaded in the Plaint and not in contest

Reasoning

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.

p. 18
05

Whether the letter of 4th October 2024 was a valid complaint under Regulation 9

Holding

The Court declined to determine this threshold contention, assuming the Appellant's case at its highest

Reasoning

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.

p. 24

Legal principles established

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  • 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

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  1. 1.The Appeal dated 11th August 2025 is hereby dismissed
  2. 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. 3.The costs of the Appeal are awarded to the Respondent and the Interested Party

The bench

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

majority

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

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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

p. 25

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

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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 Appeal dated 11th August 2025 is hereby dismissed
p. 32Final orders - dismissal of appeal
The Ruling of Hon. A. K. Makoross (SPM) delivered on 25th July 2025 in Tamu MCELC No. E010 of 2025 is hereby upheld
p. 33Final orders - upholding trial court ruling
The costs of the Appeal are awarded to the Respondent and the Interested Party.
p. 33Final orders - costs
Where Parliament has prescribed a special procedure for the resolution of a particular class of disputes, that procedure must be strictly followed.
p. 26Doctrine of exhaustion - strict adherence to statutory procedure
Jurisdiction is conferred by the Constitution and statute; it is not acquired by estoppel, acquiescence or the default of an administrative body.
p. 29Jurisdiction cannot arise from administrative default
A court either has jurisdiction or it does not; where it does not, no invocation of the overriding objective can create it.
Article 159(2)(d) cannot cure lack of jurisdiction
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.
p. 31Preservation of the Appellant's remedies

Issues in the judgment

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minor

Numbering of the judgment's paragraphs is irregular; it jumps from paragraph 36 to paragraph 41

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, "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.