[2022] KEET 786 (KLR)

Freedom Limited v Kenya Power Lighting Company (Tribunal Case E014 of 2022) [2022] KEET 786 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEET 786 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Tribunal Case E014 of 2022

D.K Mwirigi, B.H Wasioya, F. M Kavita, Samuel Maina Karanja, D Jemator & F.S Ibrahim, Members

October 5, 2022

Between

Freedom Limited

Complainant

and

Kenya Power Lighting Company

Respondent

Ruling

1. This ruling is in respect of a Notice of Preliminary Objection dated the August 14, 2022 filed by the Respondent herein. The Respondent raised a preliminary objection where it contends that this Tribunal lacks jurisdiction to hear and determine this matter as it offends a number of sections of the Energy Act, 2019, as the matter ought to have been dealt with by the Energy and Petroleum Authority (Authority) in the first instance.

2. The Plaintiff/Complainant opposed the preliminary objection and the same was canvassed by way of written submissions.

Respondent’s Submissions 3. The Respondent filed its submissions dated the 14th of August 2022. It is their submission that this Honorable Tribunal does not have jurisdiction to hear and determine the matter and thus it should dismiss this suit with costs. The Respondent asserts that the issues raised by the plaintiff against it ought to be dealt with by the Authority in the first instance.

4. The Respondents submits that the suit offends the following sections of the Energy Act, 2019:a)Sections 3, 10,11(e) ,(f), (i), ,(k), & (l) ; 23; 24 ; 36(4) ;40, 42 and 224 (2) (e) of theEnergy Act, 2019 ;Regulations 2,4,7 and 9 of the Energy (Complaints and Dispute Resolution) Regulations, 2012b.Article 159 (2) (c) and 169 (1) (d) and (2) of the Constitution of Kenya, 2010 andc.Section 9(2) and Fair Administration Act, 2015

5. The Respondent submitted that the case was purely based on wayleaves and as such the Honourable Tribunal lacked jurisdiction. It also relied on several authorities which this Honourable Tribunal has analyzed and considered. It based its arguments on a number of constitutional and legislative provisions. This includes two constitutional provisions which are Article 159 (2) of which recognizes alternative forms of dispute resolution and Article 169 (1)(d) which recognizes the establishment of local tribunals.

6. The main statutory provisions it relied on includes Section 11 of the Energy Act, 2019 that provides for the function of the Authority, Section 9 of the Fair Administrative Actthat provides for exhaustion of all available remedies and the Energy (Complaints and Dispute Resolution) Regulations, 2012.

7. In its conclusion, it submitted that that the Authority should be afforded the opportunity to exercise its jurisdiction on the matter by finding that the Tribunal lacked jurisdiction and to have it dismissed with cost.

Plaintiff’s Submissions 8. The Plaintiff submitted that this Tribunal had jurisdiction on the basis of Section 36 (3) which provides for the original civil jurisdiction of the Tribunal for disputes between a licensee and a third party. It asserted that the power of the Authority to investigate and determine complaints and dispute between parties over any matter relating to a license or a license condition was a distinct power which involved license holders or players in the energy sector. Therefore, as per its submission, this dispute did not fit within the definition of Section 11 (i). To support its assertion, it also relied on the case of Mount Kenya Safaris Limited vs.KPLC [2020] eKLR.

9. The Plaintiff argued that the case it had brought before the Tribunal was one on the unconstitutional encroachment and trespass into its own land and as such it was a dispute which fell within the original jurisdiction of this court.

Analysis and Determination 10. We have considered the record and submissions made by the complainant and the respondent. Having analyzed the arguments of both parties and the authorities they submitted before this Tribunal it is the conclusion that the issue of jurisdiction rest on a single issue which is whether this Tribunal has original jurisdiction.

11. It is a long-established principle that jurisdiction is everything. This was opined in the case of Owners of the Motor Vessel “Lilian S” Vs Caltex Oil (Kenya) Ltd (1989) - Nyarangi JA stated“Jurisdiction is everything. Without it, a court has no power to make to take one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law must down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

12. The jurisdiction of the Tribunal is well established under Section 36 of the Act and which states;1. The Tribunal shall have jurisdiction to hear and determine all matters referred to it, relating to the energy and petroleum sector arising under this Act or any other Act.2. The jurisdiction of the Tribunal shall not include the trial of any criminal offence.3. The Tribunal shall have original civil jurisdiction on any dispute between a licensee and a third party or between licensees.4. The Tribunal shall have appellate jurisdiction over the decisions of the Authority and any licensing authority and in exercise of its functions may refer any matter back to the Authority or any licensing authority for re-consideration.5. The Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages and specific performance.

13. The Respondents asserts that the Plaintiff did not exhaust the remedies required under the Act where it was required to take the matter to the Authority before filing the same before this Tribunal. The Plaintiff contends this position and argues that the dispute before this tribunal is not an issue of bTehtewJeuednicliicaerynsoef hKoelndyears of players in the energy sector and as such outside the mandate of the Authority. It submits that issues in this suit rests under the original jurisdiction of this Tribunal.

14. The facts herein raise a single issue which determines the preliminary objection. The question before this Tribunal is whether it has original jurisdiction in this dispute. Section 36 (3) of the Energy Act, 2019, provides that the Tribunal shall have jurisdiction on any dispute between a licensee and a third party. On the other hand , Section 11 (i) provides that the Authority has powers to investigate and determine complaints over any matter relating to license or license conditions under this Act.

15. Section 11 (i) gives the Authority powers to investigate and determine complaints on matters touching on license and license conditions. As such any complaints on any license or its conditions has to first go to the Authority, which as per Section 23 (1) of the Energy Act is required to make to make a decision within sixty days.

16. The Energy (Complaints and Dispute Resolution) Regulations, 2012 provides the framework for settlement of complaints or a dispute regarding licences, permits, contracts, code, conduct, practice or operation of any party or any matter. It defines a complaint to include dissatisfaction with the services rendered by, or a practise of, any person carrying out any undertaking pursuant to a license, permit or registration issued or granted by the Commission (the Authority). It also defines a dispute as any disagreement that exists between parties acting in good faith who have failed to reach an amicable resolution of a complaint after all due efforts have been made to resolve it.

17. The reading of Section 11 (i) and Section 23 of the Energy Act and Regulation 2 and 4 of the Energy (Complaints and Dispute Resolution) Regulations, 2012 provides that the disputes which have to go to the Authority in the first instance are those that fall within the mandate of the Authority. These are on matters that relate to licenses and license conditions.

18. Where a dispute does not relate to the mandate of the Authority, then it is not a dispute which should be taken to the Authority in the first instance. Section 11 (i) of the Act and the Energy (Complaints and Dispute Resolution) Regulations, 2012 are restricted to disputes that relate to a license or license conditions.

19. Any other dispute in the energy sector between licensees or between licensees and a third party fall within the original jurisdiction of the Energy and Petroleum Tribunal and as provided under 36(1) highlighted in the afore paragraphs.

20. The dispute before this Tribunal concerns a claim of trespass against the Respondent where the Plaintiff claims that the Respondent, without consent, positioned power lines outside the designated wayleave plan and erected power lines crossing its land. The question on whether this dispute should have been taken to the Authority in the first instance relies fully on whether issues of consent and wayleaves is an issue of licence or a licence condition.

21. It is clear from the pleadings that have been filed before this Tribunal that this case concerns issues on right of way and wayleaves for energy infrastructure which is provided for under Part VII of the Energy Act (Sections 170 to 186). Section 170 provides that development of energy infrastructure including electric supply lines on private land will be subject to this Act and the relevant written law.

22. Section 177 of the Energy Act provides for the liability of the licensee to make compensation to the occupier of any land for damages including any irregularity or trespass. This gives anyone with a complaint on trespass against a licensee to raise the same through the mechanisms that have been provided under the Act.

23. Section 122 (2) b provides that all licenses shall include a condition stipulating that a licensee is subject to liability under tort and contract law. This places a condition on every licensee to assume liability for tortious or contractual claims. The Act makes it an obligation for a licensee to obtain consent from the land owner and if the licensee causes damages to the property of the land owner, then he becomes liable to compensate for the damages.

24. Part VII which provides for rights of way, wayleaves and use of land for energy infrastructure does not expressly provide where disputes emerging from issues of wayleaves and consent should be referred to. However, the Act provides under Section 180 that disputes on power to lop trees and hedges shall be referred to the Authority. The Authority is also given the power to determine the compensation, if any. Aspects of wayleaves are elemental aspects to a license as they form part of license conditions. The Authority, under its power to investigate disputes relating to license conditions, is best suited to establish whether the Respondent herein encroached on the Plaintiff’s land and erected power lines outside the wayleaves plan. It is the determination of this tribunal that this matter should be referred to the Authority for its determination.

Disposition 25. We direct that this matter be referred to the Energy and Petroleum Regulatory Authority for hearing and determination pursuant to Section 25 of the Energy Act and the Energy (Complaints and Dispute Resolution) Regulations, 2012 within the stipulated statutory timeliness.

Each party shall bear its own costs

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF OCTOBER 2022. In the Presence of:……………………Ms. Doris Kinya MwirigiVice Chairperson……………………Eng. Buge Hatibu WasioyaMember……………………Eng. Fidelis Muli KavitaMember……………………Mr. Samuel Maina KaranjaMember……………………Ms. Dorothy JematorMember……………………Mr. Feisal Shariff IbrahimMemberSIGNED BY: DORIS KINYA MWIRIGIThe Judiciary of KenyaTHE JUDICIARY OF KENYA. ENERGY AND PETROLEUM TRIBUNAL ENERGY AND PETROLEUM TRIBUNAL DATE: 2022-10-05 21:48:55+03The Judiciary of KenyaDoc IDENTITY: 1983407753356334632269710404