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ELCOtherNot stated in the ruling· [2025] KEELC 7523 (KLR)

Kenya Power & Lighting Company PLC v Omanga (Land Case Appeal E004 of 2025) [2025] KEELC 7523 (KLR)

Environment and Land Court
30 October 2025
1,555 words in judgment
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, J) determined three interlocutory matters: the Respondent's Notice of Motion dated 25th February 2025 seeking striking out of the appeal, the Appellant's Notice of Motion dated 1st April 2025, and the Respondent's preliminary objection. The dispute originated in a trespass suit in which the Appellant, having erected power lines on the Respondent's land, lost a preliminary objection challenging the trial court's jurisdiction under the Energy Act, 2019, and appealed without obtaining leave. The Respondent argued that dismissal of a preliminary objection is not appealable as of right under section 75(1) of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, relying on Lucy Wanjiku Nyaga and Mucheri. The Appellant, through C. Mwenda, contended that Order 43 Rule 1(1)(b) read with Order 2 Rule 9 rendered such appeals as of right, citing Mukisa Biscuits. The court framed one issue: whether the appeal was competent. Holding that the preliminary objection concerned jurisdiction under the Energy Act rather than pleadings, the court found Order 2 Rule 9 inapplicable and held that leave was required; an appeal filed without requisite leave is incompetent, applying Kiruthu v Konje and Nyutu Agrovet vs Airtel Networks. The Respondent's application was allowed, the appeal struck out, each party bearing own costs of the appeal; the Appellant's application and the Respondent's preliminary objection were marked spent with no orders as to costs.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 3
02

Effect of filing an appeal without required leave on the court's jurisdiction

Holding

An appeal filed without leave where leave is required is incompetent and the appellate court lacks jurisdiction to hear it.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 25th February, 2025 is allowed and the appeal is struck out
  2. 2.Each party to bear own costs of the appeal
  3. 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

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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 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.