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ELCDismissedELCLA Appeal No E026 of 2024 & ELCLA Appeal No E027 of 2024 (Consolidated)· [2025] KEELC 4878 (KLR)

Kenya Electricity Transmission Company Limited v Matthew (Environment and Land Appeal E026 & E027 of 2024 (Consolidated)) [2025] KEELC 4878 (KLR)

Environment and Land Court
26 June 2025
8,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Land Acquisition Tribunal — not the energy regulator or arbitrators — decides wayleave compensation disputes, and KETRACO's appeal failed.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi, per O. A. Angote J, dismissed two consolidated appeals (ELCLA E026 and E027 of 2024) against rulings of the Land Acquisition Tribunal in Case No E005 of 2023. The first ruling rejected the Appellant's (KETRACO's) Preliminary Objection challenging the Tribunal's jurisdiction; the second declined to stay the proceedings and refer the dispute to arbitration under Section 6(1) of the Arbitration Act. The dispute concerned the Respondent's claim for compensation for structures on his land traversed by a KETRACO transmission line wayleave. The court held that Section 175 of the Energy Act defers wayleave compensation disputes to the relevant written law, which is the Land Act, whose Section 133C(6) confers first-instance jurisdiction on the Land Acquisition Tribunal; Section 3(1) of the Energy Act prevails only on technical energy matters, and the 2012 EPRA Regulations, being subsidiary legislation, could not oust that jurisdiction. Abidha Nicholus was distinguished. On arbitration, the court held that filing a Preliminary Objection other than on arbitrability constituted a procedural step and waiver of the right to arbitrate, and the Motion was also filed outside the strict timing required by Section 6(1). On the 60-day timeline in Section 133C(3), the court held, purposively, that the Tribunal's failure to formally extend time did not vitiate its decision absent demonstrated prejudice. Both appeals were dismissed with costs.

Key legal issues

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Jurisdiction of the Land Acquisition Tribunal over wayleave compensation disputes versus EPRA under the Energy Act

Holding

The Tribunal properly assumed jurisdiction; Section 175 of the Energy Act defers compensation disputes to the relevant written law, which is the Land Act, and Section 133C(6) vests first-instance jurisdiction in the Tribunal

Reasoning

The court undertook a contextual and purposive reading of Section 175 of the Energy Act, concluding that wayleave compensation disputes are deferred to the Land Act regime. Section 3(1) of the Energy Act prevails only on technical and operational energy matters, not compensation adjudication. The 2012 Energy (Complaints and Dispute Resolution) Regulations, being subsidiary legislation, could not confer jurisdiction on EPRA inconsistent with the parent statutes. Abidha Nicholus was distinguishable as it concerned exhaustion, not the Tribunal's jurisdiction.

p. 10
02

Whether filing a Preliminary Objection constitutes a procedural step barring a Section 6(1) Arbitration Act stay application

Holding

Yes; the filing of a Preliminary Objection challenging jurisdiction (other than on arbitrability) amounts to a procedural step and waiver of the right to arbitration, and the Motion was also filed out of time

Reasoning

Relying on Yooshin Engineering Corporation v AIA Architects and Mount Kenya University v Step Up Holding, the court adopted a strict and purposive interpretation of Section 6(1), requiring a stay application to be filed concurrently with entry of appearance and before any other step. A Preliminary Objection that goes beyond arbitrability engages the merits and submits the party to the forum. The Motion filed after the Preliminary Objection was therefore out of time.

p. 13
03

Whether the Tribunal's decision outside the 60-day timeline under Section 133C(3) of the Land Act was a nullity

Holding

No; the timelines are directory rather than mandatory and the failure to formally extend time under Section 133C(4) did not extinguish the Tribunal's jurisdiction absent demonstrated prejudice

Reasoning

Guided by Crown Beverages v MFI Document Solutions and Biosystems Consultants v Nyali Links Arcade, the court held that statutory timelines should be interpreted purposively in light of access to justice and finality. Section 133C(4) empowers extension for sufficient cause, but no provision renders non-extension fatal to jurisdiction. The Appellant demonstrated no prejudice, inordinate delay, or bad faith.

p. 16

Legal principles established

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  • Disputes relating to creation of wayleaves and compensation therefor must, in the first instance, be referred to the Land Acquisition Tribunal under Section 133C(6) of the Land Act
  • Subsidiary legislation cannot confer jurisdiction inconsistent with or beyond the parent statute
  • An application under Section 6(1) of the Arbitration Act must be made not later than the time of entering appearance, and taking any other step including a Preliminary Objection amounts to waiver of the right to arbitration
  • Failure by a tribunal to determine a matter within the 60-day timeline under Section 133C(3) of the Land Act does not, without demonstration of prejudice, render its decision a nullity

Court orders

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  1. 1.The two Appeals are dismissed with costs
On appeal from
Land Acquisition Tribunal
E005 of 2023
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13(4) of the Environment and Land Court Act, 2011 and Section 133D of the Land Act

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, "Kenya Electricity Transmission Company Limited v Matthew (Environment and Land Appeal E026 & E027 of 2024 (Consolidated)) [2025] KEELC 4878 (KLR)", Case Analysis (2025). ELCLA Appeal No E026 of 2024 & ELCLA Appeal No E027 of 2024 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4878/eng@2025-06-26

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