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ELCDismissedNot stated in judgment· [2024] KEELC 3601 (KLR)

Feneast Nominees Limited v Transmission Company Limited (Environment & Land Case 15 of 2023) [2024] KEELC 3601 (KLR)

Environment and Land Court
2 May 2024
LOL. A. Omollo
2,121 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed landowners can sue for power line wayleave compensation in the ELC, not energy regulators.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determines a Preliminary Objection dated 11th September 2023 in which the Defendant contended that the court lacked jurisdiction over the Plaintiff's suit, the dispute instead lying with the Energy and Petroleum Regulatory Authority. The Plaintiff, by plaint dated 18th August 2023, sought Kshs. 15,149,206.80 as compensation for a wayleave through land reference number 425/63, Naivasha, used as a corridor for the Olkaria-Lessos-Kisumu electricity transmission line, together with interest at 14% per annum and costs. Both parties framed a single issue: whether the court has jurisdiction to hear and determine the suit. The Defendant relied on the Supreme Court's Samuel Kamau Macharia decision, Sections 3, 11, 24 and 175 of the Energy Act, Regulations 4(a) and 7 of the Energy (Complaints and Disputes Resolution) Regulations 2012, and the Court of Appeal decision in Abidha Nicholus, arguing only appellate jurisdiction lay with the ELC. The Plaintiff relied on Article 162(2)(b) of the Constitution, Sections 13 of the ELC Act and 148(5) of the Land Act, and the Supreme Court's later Nicholus decision which, she noted, set aside the Abidha Nicholus Court of Appeal decision. The court held the objection was a valid pure point of law but found jurisdiction vested in the ELC, as the claim is hinged on wayleave compensation under the Land Act and the Energy Act does not expressly oust ELC jurisdiction. The Preliminary Objection was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a claim for wayleave compensation for an electricity transmission line, or whether such dispute lies with the Energy and Petroleum Regulatory Authority

Holding

The ELC has jurisdiction; the Energy Act does not oust the ELC's original jurisdiction over wayleave compensation disputes, which fall under Article 162(2)(b), Section 13 of the ELC Act and Section 148(5) of the Land Act

Reasoning

The court noted the claim is for compensation for use of the plaintiff's land as a corridor for a transmission line. Section 13(2)(d) of the ELC Act covers disputes over contracts and instruments granting enforceable interests in land, and Section 148(5) of the Land Act expressly permits an application to the Court where compensation cannot be agreed. Section 175 of the Energy Act refers determination of compensation questions to relevant written law. Relying on the Supreme Court's decision in Nicholus, the Energy Act does not expressly oust ELC jurisdiction. The preliminary objection therefore failed.

p. 5
02

Whether the objection was a valid preliminary objection in law

Holding

Yes - a jurisdictional objection is a pure point of law under the Mukisa Biscuit test and warranted determination

Reasoning

The court applied the classic definition in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, noting that an objection on the jurisdiction of the court is an example of a pure point of law which may dispose of the suit if argued as a preliminary point. It therefore considered the objection valid and ripe for determination.

p. 4

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation and it cannot exceed what is conferred by law
  • The Energy Act does not expressly oust the jurisdiction of the ELC in respect of disputes involving the environment or energy; the ELC retains original jurisdiction
  • Where a person entitled to wayleave compensation and the duty-paying body cannot agree, that person may apply to the Court to determine the amount and method of payment

Court orders

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  1. 1.The Defendant's Preliminary Objection dated 11th September, 2023 is dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b), Article 162(3)
  • Environment and Land Court Act No. 9 of 2011Section 13(1), 13(2)(a)-(e)
  • Energy Act No. 1 of 2019Sections 3(1), 11, 224(2)(e), 24(1), 25, 36(4), 37(3), 40, 148, 175
  • Land ActSection 148(5)
  • Energy (Complaints and Disputes Resolution) Regulations 2012Regulations 4(a) and 7

Cases cited (12)

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank and 2 Others
    [2012] eKLR, Application No. 2 of 2011
  • In the Matter of Interim Independent Electoral Commission
    [2011] eKLR, Constitutional Application No. 2 of 2011
  • Abidha Nicholus v Kenya Power & Lighting Company Limited & 13 Others
    Kisumu Civil Appeal No. 42 of 2021
  • Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)
    (Petition E007 of 2023) [2023] KESC 113 (KLR)
  • Sombo K Sombo and 2 Others v Ketraco and 3 Others
    ELC Case No. E021 of 2021
  • Osman Gutu Wachu and Another v Kenya Electricity Transmission Company Limited
    ELC Petition No. e008 of 2022
  • Tabitha K. Rutere v Kenyatta University
    [2018] eKLR
  • Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • AKM v NNN
    [2019] eKLR
  • Patrick Mwangi Muchuku v Kenya Electricity Transmission Company Limited
    ELC Pet. E3 of 2022
  • Igal Roni Elfezouaty and Makau Nafuu v Kenya Electricity Transmission Company Limited
    EPA/E023
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 read with Section 13 of the Environment and Land Court Act and Section 148(5) of the Land Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Feneast Nominees Limited v Transmission Company Limited (Environment & Land Case 15 of 2023) [2024] KEELC 3601 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3601/eng@2024-05-02

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