Omollo v Kenya Power and Lighting Company PLC & another (Environment and Land Appeal E077 of 2025) [2026] KEELC 5354 (KLR)

Although framed in trespass, breach of statutory duty and violation of fundamental rights, the Plaint pleaded entry onto land by a licensee, erection of a 3-phase power line without consent, and sought compensation for the creation of a wayleave. Regulation 4(a) expressly applies the Regulations to wayleave, easement and rights-of-way disputes. The Court of Appeal's binding decision in Abidha Nicholus establishes the three-tier mechanism: EPRA, then the Energy and Petroleum Tribunal, then the superior courts.

The legislature anticipated the mischief of the Authority's default and provided the corrective in Section 23(5) - an appeal to the Tribunal within seven days of the expiry of the sixty days. The permissive 'may' confers a discretion whether to pursue the grievance at all, not a licence to elect another forum. The Fleur Investments exception was not engaged because mere administrative delay was shown, with no demonstration that the Tribunal could not afford an efficacious remedy under Sections 36(3) and 36(5).

Article 159(2)(d) was never intended to oust compliance with jurisdictional prerequisites. The trial court did not strike out the suit on a point of form but because Parliament had assigned the dispute to another forum. Article 159(2)(c) itself commands promotion of alternative and statutory dispute resolution mechanisms, and Articles 169(1)(d) and (2) recognise Parliament's tribunals.

An objection to jurisdiction is the quintessential preliminary objection. The facts on which the objection was determined - the nature of the claim, the erection of the power line, and the letters of 3rd September and 4th October 2024 - were all pleaded in the Plaint itself and were not in contest, satisfying the Mukisa Biscuit formulation.

Determining whether the letter met Regulation 9's formal requirements would require an inquiry into facts, which has no place in the determination of a preliminary objection where pleaded facts must be assumed correct. Since the appeal would fail even on the assumption that the letter was a valid complaint which set the sixty-day period running, it was unnecessary to resolve the contention.