Kenya Power & Lighting Company PLC v Omanga (Land Case Appeal E004 of 2025) [2025] KEELC 7523 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an appeal filed without required leave, confirming that appeals from jurisdiction-based preliminary objections need court permission first.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal from dismissal of a preliminary objection lies as of right under Order 43 Rule 1(1)(b) via Order 2 Rule 9
No. The preliminary objection concerned the jurisdiction of the trial court under the Energy Act, not pleadings; the appeal therefore required leave under section 75 of the Civil Procedure Act.
The court noted it was common ground that the preliminary objection challenged the trial court's jurisdiction under the Energy Act and not any party's pleadings. Order 2 Rule 9 merely permits points of law to be pleaded; the ruling appealed against did not relate to Order 2 Rule 9 or pleadings. Consequently, the appeal fell outside the orders appealable as of right and leave was mandatory, failing which the appeal was incompetent.
Effect of filing an appeal without required leave on the court's jurisdiction
An appeal filed without leave where leave is required is incompetent and the appellate court lacks jurisdiction to hear it.
Relying on Nyutu Agrovet vs Airtel Networks Ltd, the court held that where there is no automatic right of appeal under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, the appellate court has no jurisdiction unless leave is first sought and obtained. The appeal was accordingly struck out.
Legal principles established
#- Where leave to appeal is required under Section 75 of the Civil Procedure Act and was not obtained, the appeal is incompetent and must be struck out.
- Order 2 Rule 9 allows a party to raise points of law in pleadings, but does not make appeals from the dismissal of preliminary objections appealable as of right.
Court orders
#- 1.The application dated 25th February, 2025 is allowed and the appeal is struck out
- 2.Each party to bear own costs of the appeal
- 3.The Appellant's application dated 1st April, 2025 and the Respondent's Preliminary Objection are marked as spent, with no orders as to costs
- On appeal from
- Trial court (magistrates' court, not specified in the ruling)
- Jurisdiction invoked
- Appellate jurisdiction under sections 75 and 79G of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company PLC v Omanga (Land Case Appeal E004 of 2025) [2025] KEELC 7523 (KLR)", Case Analysis (2025). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7523/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.