Vitalis Ouma Osan v Kenya Power & Lighting Co. Ltd [2021] KEELC 2107 (KLR)

The court found that the dispute revolves around development of energy infrastructure, namely electricity supply lines, on the plaintiff's private land. Section 170 permits development of energy infrastructure on, through, over or under private land subject to the Act, and Section 36 confers on the Tribunal original civil jurisdiction over disputes between a licensee and a third party. Since Kenya Power is a licensee, the plaintiff must refer the dispute to the Tribunal, which can grant the equitable reliefs sought, including damages and injunctions.

The court adopted the Section 2 definition of administrative action, which includes any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person. The defendant's construction of power lines on the plaintiff's land was held to affect his rights. Consequently the mechanisms and remedies available under other written law, including referral to the Tribunal, had to be exhausted first under Section 9(2) and (3).

The plaintiff argued the PO failed the Mukisa Biscuits test because it required ascertainment of facts and that Article 159(2)(c) cannot ground a preliminary objection absent a contractual ADR clause. The court did not expressly address this submission but proceeded to consider the jurisdictional question and found for the defendant on the Energy Act and Fair Administrative Action Act grounds.