Kenya Power & Lighting Company v Odongo (Environment and Land Appeal E001 of 2023) [2024] KEELC 4942 (KLR)
The bottom line
#Land disputes with Kenya Power over power poles must first go to the Energy and Petroleum Tribunal; the magistrate's court cannot hear them.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the magistrate's court over disputes concerning electricity way leaves, easements and rights-of-way under the Energy Act, 2019
The magistrate's court lacked jurisdiction; such disputes fall within the original jurisdiction of the Energy and Petroleum Tribunal and the statutory dispute resolution mechanism had to be exhausted first.
The suit concerned the positioning of power supply poles and cables and whether the appellant had way leaves or overriding interests over the respondent's land. Regulation 4 of the Energy (Complaints and Dispute Resolution) Regulations 2012 expressly covers way leaves, easements and rights-of-way. Section 36(3) of the Energy Act confers original civil jurisdiction over licensee–third party disputes on the Tribunal, and section 11(i) mandates the Authority to investigate and determine complaints relating to licences. The respondent did not resort to that mechanism.
Duty of a first appellate court
A first appellate court must re-examine and analyse the evidence before the trial court and arrive at its own independent conclusions.
Relying on section 78 of the Civil Procedure Act and Selle v Associated Motor Boat Company Ltd, the court restated that it is not bound by the findings of the court below and must re-evaluate the evidence afresh.
Whether the trial court considered the appellant's submissions and statutory provisions on jurisdiction
The trial court erred by failing to refer to the appellant's submissions or the provisions of law cited therein before assuming jurisdiction.
The record showed that the statutory framework and authorities were placed before the trial court through submissions, yet the ruling made no reference to them and simply concluded that it had jurisdiction, rendering the decision erroneous.
Legal principles established
#- Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed before resorting to court.
- The Energy and Petroleum Tribunal has original civil jurisdiction over disputes between a licensee and a third party, including disputes over way leaves and easements, which must be exhausted before approaching the court.
Court orders
#- 1.The ruling of the trial court dated 25/9/2023 dismissing the appellant's preliminary objection is set aside and substituted with an order upholding the preliminary objection and striking out the suit for lack of jurisdiction on the part of the trial court.
- 2.Each party to bear own costs of the suit and the appeal herein.
- On appeal from
- Principal Magistrate's Court, Vihiga
- Vihiga PMC ELC Case No. 34 of 2023
- Jurisdiction invoked
- First appeal under section 78 of the Civil Procedure Act (appeal from the Magistrate's Court ruling on a preliminary objection)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company v Odongo (Environment and Land Appeal E001 of 2023) [2024] KEELC 4942 (KLR)", Case Analysis (2024). Vihiga ELC Appeal arising from Vihiga PMC ELC Case No. 34 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4942/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.