Omollo v Kenya Power and Lighting Company PLC & another (Environment and Land Appeal E077 of 2025) [2026] KEELC 5354 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. E077 OF 2025** **JOSHUA A. ODINGO OMOLLO** **APPELLANT** **VERSUS** **KENYA POWER AND LIGHTING COMPANY PLC** **RESPONDENT** **AND** **ENERGY AND PETROLEUM REGULATORY AUTHORITY** **INTERESTED PARTY** ***(Being an appeal from the Ruling of Hon. A. K. Makoross (SPM) delivered on 25th July 2025 in Tamu MCELC No. E010 of 2025)*** **JUDGMENT** 1. This appeal arises from the Ruling of Hon. A. K. Makoross (SPM) delivered on 25th July 2025 in Tamu MCELC No. E010 of 2025, by which the trial court upheld a Notice of Preliminary Objection dated 15th April 2025 raised by the Respondent, found that it lacked jurisdiction to entertain the suit, and struck out the entire suit with costs to the Respondent and the Interested Party. 2. The background to the dispute is as follows. By a Plaint dated 25th March 2025, the Appellant (as Plaintiff) sued the Respondent (as Defendant) and joined the Interested Party, averring that on or about 2018 the Respondent, without his consent, authority or permission, wrongfully entered his land parcel known as **Muhoroni Township/Shauri Moyo/1024** on which he has constructed rental houses, and proceeded to erect a 3-phase power line thereon. He pleaded that he earns rental income of Kshs. 8,000 per month from the parcel and intends to put up a six-storey building with the aid of UN-Habitat, which would improve his income to a projected Kshs. 80,000 per month. 3. The Appellant pleaded that he wrote to the Respondent on 3rd September 2024 demanding relocation of the power line, which letter was ignored, and that he thereafter lodged a complaint with the Interested Party by a letter dated 4th October 2024 seeking that it compels the Respondent to remove the power line and pay damages. He averred that the Interested Party went mute over the complaint. He particularised trespass, breach of statutory duty and violation of his fundamental rights, and prayed for a declaration of trespass, compensation for the creation of a wayleave, general damages for loss of business opportunity, general damages for pain and suffering, and costs. 4. The Respondent filed a Statement of Defence and a Notice of Preliminary Objection both dated 15th April 2025. The Preliminary Objection contended that the trial court lacked jurisdiction to hear and determine the suit as the same offended Sections 3, 10, 11(e), (f), (i), (k) and (l), 23, 24, 36, 40, 42 and 224(2)(e) of the Energy Act, 2019, together with Regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012, as read with Articles 159(2)(c) and 169(1)(d) and (2) of the Constitution and Sections 9(2) and (3) of the Fair Administrative Action Act, 2015. 5. The Preliminary Objection was canvassed before the trial court by way of written submissions. The Respondent and the Interested Party contended that the dispute, being one relating to wayleaves, easements and rights-of-way in relation to the transmission and distribution of electrical energy, fell within the dispute resolution mechanism established under the Energy Act, 2019 and the Energy (Complaints and Disputes Resolution) Regulations, 2012, and invoked the doctrine of exhaustion. The Appellant, on his part, submitted that he had lodged a valid complaint with the Interested Party vide the letter dated 4th October 2024; that the Interested Party failed to determine it within the sixty (60) days prescribed by Section 23(1) of the Energy Act, 2019; and that the word “may” in Section 23(5) of the Act rendered an appeal to the Energy and Petroleum Tribunal optional, thereby leaving him at liberty to approach the court. 6. In its Ruling delivered on 25th July 2025, the trial court identified the pith and substance of the dispute as one revolving around a wayleave. Guided by, inter alia, the decision of the Court of Appeal in ***Abidha Nicholus v Attorney General & 7 Others; National Environmental Complaints Committee & 5 Others (Interested Parties)* (Kisumu Civil Appeal No. 42 of 2021) and the decision in Naivasha ELCA No. 20 of 2024, *Kenya Power and Lighting Company Limited v George Mbugua Kamau*,** the trial court held that it lacked jurisdiction to entertain the matter and struck out the suit with costs to the Respondent and the Interested Party. **The Appeal** 7. Aggrieved by the said Ruling, the Appellant preferred the present appeal vide a Memorandum of Appeal dated 11th August 2025 raising one omnibus ground with six limbs, namely, that the trial court erred in law and fact in finding that it lacked jurisdiction to determine the Plaint dated 25th March 2025 on its merits, in that: (i) the court unnecessarily elevated procedural law above substantive law thereby disregarding the overriding objective under the Civil Procedure Act; (ii) the court failed to recognize that the letter dated 4th October 2024 addressed to the Interested Party contained the same information as required by Rule 10 of the Energy (Complaints and Dispute Resolution) Regulations, 2012; (iii) the court failed to recognize that the Interested Party received the said letter with the intention of seeking a response from the Respondent, thereby impliedly endorsing the letter as a proper vehicle for seeking redress; (iv) the court failed to recognize that upon receipt of the letter dated 4th October 2024, a legitimate expectation arose that the Interested Party would determine the dispute within the timelines prescribed under Section 23 of the Energy Act, 2019; (v) the court failed to recognize the Appellant's letter dated 3rd September 2024 to the Respondent seeking relocation of the power line, which was ignored; and (vi) the court failed to recognize the Appellant's genuine effort, through the two letters, to exhaust other forums of dispute resolution before seeking the court's assistance. 8. The Appellant accordingly prayed that the Ruling of 25th July 2025 be set aside; that this Court declares that he lodged a valid complaint before the Interested Party and thereby exhausted the dispute resolution forum under the Energy Act, 2019, the Interested Party having failed to determine the dispute within the mandatory sixty days; that the suit MCELC No. E010 of 2025 be heard on merit on a priority basis by the trial court; and that the Respondent and the Interested Party be condemned to pay the costs of the appeal and of opposing the Preliminary Objection at the trial court. **Submissions** 9. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 16th June 2026 through the firm of Amondi & Co. Advocates. Counsel identified three issues: whether the Appellant exhausted the alternative dispute resolution mechanisms under the Energy Act; whether the trial court erred in law and fact by prioritizing procedural technicalities over substantive justice contrary to the overriding objectives; and whether the suit should be heard on merit by the trial court. 10. On the first issue, counsel submitted that under Section 23 of the Energy Act, the Interested Party was mandated to determine disputes brought before it within sixty days; that the Appellant moved the Interested Party on 4th October 2024 and the statutory period expired in December 2024 with no determination or administrative relief; and that once a specialized statutory body fails to act within its strict timelines, the administrative remedy becomes exhausted by operation of law. Counsel relied on **Fleur Investments Limited v Commissioner of Domestic Taxes & Another [2018] eKLR** for the proposition that the court, being a bastion of justice, cannot sit back and watch statutory institutions ride roughshod over the rights of citizens, and is entitled to intervene where there is clear abuse of discretion, arbitrariness or disrespect of the rules of natural justice. It was submitted that the Interested Party's inaction cannot be used to lock the Appellant out of his constitutional right of access to justice, and that his rights under Article 40 of the Constitution continue to be violated. 11. On the second issue, counsel invoked Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution, and relied on **Githere v Kimungu [1976-1985] EA 101** for the proposition that rules of practice are intended to be the handmaid rather than the mistress of justice, and on **Adrian Kamotho Njenga v Cabinet Secretary, Ministry of Information, Communication and Technology & Others, Nairobi High Court Petition No. 203 of 2016,** on the distinction between procedural and substantive law. Counsel contended that the trial court's rigid prioritization of form over the clear substance of the Appellant's grievance offended access to justice. On the third issue, counsel submitted that the judicial process was the only surviving avenue for redress, and urged the Court to set aside the Ruling, declare the statutory processes exhausted, and order that the suit be heard on merit by the trial court, with costs. 12. The Respondent filed written submissions dated 17th June 2026 through Mr. Justus Ododa, Advocate. On the propriety of the Preliminary Objection, counsel relied on **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 as distilled in Mulemi v Angwenye & Another [2021] KECA 214 and cited in Hon. Kennedy Nyagudi v Agricultural Finance Corporation & 2 Others, Nairobi HC No. E176 of 2021,** submitting that the objection was a pure point of law, was pleaded in the Statement of Defence, and was argued on the facts as pleaded by the Appellant himself. On jurisdiction, counsel reiterated the three-tier mechanism affirmed in **Abidha Nicholus (supra) and relied on Kenya Power & Lighting Company Limited v George Kamau Mbugua, Naivasha ELCA No. E020 of 2024,** in which it was held that a dispute between a licensee and a third party over alleged trespass falls within the matters regulated under the Energy Act, 2019. 13. Confronting the Appellant's central argument head-on, counsel for the Respondent reproduced Section 23 of the Energy Act, 2019 and submitted that under Section 23(5), where the Authority does not make a decision within the prescribed sixty days, the appellant may appeal to the Tribunal within seven days of the expiry of that period; that the Appellant therefore ought to have lodged an appeal at the Energy and Petroleum Tribunal rather than approach the trial court; and that the Appellant's position that the Interested Party's inaction opened the way for judicial protection was inaccurate and misleading. Counsel further relied on **Joseph Nzyoki Mwanthi v Kenya Power & Lighting Co. Ltd [2017] eKLR and on the recent decision of Mugambi J in Mehret Gebreyesus (suing as legal representative of the Estate of Stefanos Egzibher) v KPLC & Another, Milimani HCCHRPET No. E564 of 2025 (28th May 2026),** where a petition was struck out for offending the doctrine of exhaustion in view of the elaborate dispute settlement mechanism under the Energy Act. On costs, counsel invoked Section 27 of the Civil Procedure Act and urged that costs follow the event, praying that the appeal be dismissed with costs to the Respondent. 14. The Interested Party filed written submissions dated 22nd June 2026 through Ms. Cecilia Chebon, Advocate. Counsel framed three issues for determination: whether the learned trial magistrate erred in law in finding that the court lacked jurisdiction; whether the Appellant complied with and exhausted the dispute resolution mechanisms provided under the Energy Act; and whether the letter dated 4th October 2024 constituted a valid complaint under the Energy (Complaints and Dispute Resolution) Regulations, 2012. 15. On the first issue, counsel submitted that jurisdiction is everything and falls to be determined at the earliest opportunity. It was submitted that, on the face of the Plaint, the Appellant’s claim was founded upon unlawful entry onto his land, the erection of a three-phase power line thereon, and trespass together with anticipated economic loss; that such claims are in substance wayleave claims touching on the use of land for energy infrastructure and on compensation for alleged trespass by a licensee; and that they are expressly governed by Part VII of the Energy Act (Sections 170 to 186) and Regulation 4 of the Energy (Complaints and Dispute Resolution) Regulations, 2012. Counsel outlined the specialised and hierarchical three-tier mechanism established by the Act a complaint lodged with the Interested Party at the first instance, an appeal to the Energy and Petroleum Tribunal under Section 36, and a further appeal to the High Court and relied on paragraph 40 of *Abidha Nicholus* (supra), where the Court of Appeal held that a complaint against the Respondent relating to a wayleave for transmission must first be resolved before the Interested Party, with a right of appeal thereafter to the Tribunal. The trial court, it was urged, correctly applied that binding precedent and the doctrine of exhaustion which underpins it. 16. On the second issue, counsel submitted that the doctrine of exhaustion is anchored in Article 159(2)(c) of the Constitution and in Sections 9(2) and (3) of the Fair Administrative Action Act, 2015, which require that where a statute provides an internal mechanism for appeal or review, that mechanism must be exhausted before a party approaches the courts. The doctrine, it was submitted, preserves the jurisdiction of specialised statutory bodies, promotes orderly dispute resolution, ensures that technical disputes are first handled by the regulator possessed of the requisite expertise, and prevents premature recourse to litigation. Reliance was placed on the ruling of the Energy and Petroleum Tribunal in **Jane Wawira Njue v Kenya Electricity Transmission Company Limited, Tribunal Case No. 2 of 2022, [2023] KEET 55 (KLR),** at paragraphs 42 and 43, where the Tribunal held that although it is vested with jurisdiction over wayleave disputes, it may exercise that jurisdiction only after the Interested Party has dealt with the dispute in the first instance. Counsel submitted that the Appellant neither filed a formal complaint before the Interested Party nor obtained any determination capable of founding an appeal to the Tribunal, with the result that the suit before the trial court was premature and incompetent for want of exhaustion of the prescribed statutory remedies. 17. On the third issue, counsel for the Interested Party submitted that the Regulations prescribe a mandatory and detailed procedure for the lodging and determination of disputes in the energy sector; that under Regulation 9 a dispute must be formally referenced, accompanied by the requisite number of copies, presented through structured pleadings and supported by relevant documentation, these requirements being mandatory and not merely directory; that a mere letter does not constitute a formal dispute reference, does not trigger the Interested Party’s adjudicatory jurisdiction and does not commence the statutory timelines; and that, no valid complaint having been filed, the Interested Party was never properly seized of the matter and the timelines contemplated under Section 23 could not lawfully begin to run. The Appellant’s assertion that the Interested Party “failed to act within 60 days” was therefore said to be both factually and legally untenable, presupposing as it does a properly instituted complaint which was never made. The Interested Party prayed that the appeal be dismissed in its entirety with costs, that the Ruling of the trial court dated 25th July 2025 be upheld, and that the Court find that the Appellant failed to exhaust the mandatory statutory remedies available to him before instituting the suit. **Analysis and determination** 18. I have carefully considered the record of appeal, the Memorandum of Appeal, the impugned Ruling and the submissions filed. This being a first appeal, this Court is under a duty to re-evaluate, re-assess and re-analyse the material that was before the trial court and reach its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses. See **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.** The present appeal, however, turns on a pure question of law, namely jurisdiction, in respect of which this Court is in as good a position as the trial court and owes no deference to its conclusions. 19. Arising from the grounds of appeal and the submissions, the following issues commend themselves for determination: **i. Whether the Preliminary Objection was properly taken and whether the trial court had jurisdiction to hear and determine the suit;** **ii. Whether the Interested Party's failure to determine the Appellant's complaint within sixty days exhausted the statutory dispute resolution mechanism and conferred jurisdiction on the trial court;** **iii. Whether the striking out of the suit offended Article 159(2)(d) of the Constitution and the overriding objective; and** **iv. What orders should issue, including on costs.** ***Whether the Preliminary Objection was properly taken and whether the trial court had jurisdiction*** 20. The starting point is the propriety of the Preliminary Objection itself. In ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* [1969] EA 696,** it was held that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which, if argued as a preliminary point, may dispose of the suit. An objection to jurisdiction is the quintessential preliminary objection. The facts upon which the objection was determined the nature of the claim, the erection of the power line, and the letters of 3rd September 2024 and 4th October 2024 were all pleaded in the Plaint itself and were not in contest. The objection was therefore properly taken and properly determined as a preliminary point. 21. The centrality of jurisdiction needs no elaborate restatement. As held in ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd* [1989] KLR 1,** jurisdiction is everything; without it, a court has no power to make one more step, and must down its tools the moment it holds the opinion that it is without jurisdiction. A court's jurisdiction flows from the Constitution or legislation or both, and a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. See **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR.** 22. What, then, was the true nature of the dispute before the trial court? It is now well settled that in determining jurisdiction, the court looks at the pith and substance of the claim and not the garb in which it is dressed. The Plaint pleaded the entry upon the Appellant's land by the Respondent, a licensee in the energy sector, and the erection of a 3-phase power line thereon without consent and without compensation. The reliefs sought included compensation for the creation of a wayleave. The trial court found, correctly in my view, that despite the claim being framed in trespass, breach of statutory duty and violation of fundamental rights, the dispute revolved around a wayleave for the transmission and distribution of electrical energy. 23. Part VII of the Energy Act, 2019 (Sections 170 to 186) regulates rights of way, wayleaves and the use of land for energy infrastructure, including entry upon private land and the compensation payable therefor. Further, by dint of the transitional provision in Section 224(2)(e) of the Act, the Energy (Complaints and Disputes Resolution) Regulations, 2012 remain in force. Regulation 4(a) thereof expressly applies the Regulations to complaints and disputes concerning, inter alia, “way leaves, easements or rights-of-way in relation to the generation, transmission, distribution, supply and use of electrical energy.” The dispute pleaded in the Plaint fell squarely within this regime. 24. The dispute resolution architecture under the Energy Act, 2019 was authoritatively expounded by the Court of Appeal in **Abidha Nicholus v Attorney General & 7 Others; National Environmental Complaints Committee (NECC) & 5 Others (Interested Parties) (Civil Appeal 42 of 2021) [2023] KECA 34 (KLR),** a decision which was before the trial court and which is binding on this Court. The Court of Appeal held that the mechanism is three-tiered: a complaint is first raised with the Energy and Petroleum Regulatory Authority; a party dissatisfied with the decision of the Authority may then appeal to the Energy and Petroleum Tribunal, whose jurisdiction under Section 36 of the Act includes original civil jurisdiction over any dispute between a licensee and a third party, and power to grant equitable reliefs including injunctions, penalties, damages and specific performance; and only thereafter may the matter be escalated to the superior courts by way of appeal under Section 37(3). The Court of Appeal observed that the remedies available in that scheme are wide and efficacious, and upheld the declining of jurisdiction in respect of grievances against the Respondent herein of precisely the character pleaded in the present Plaint. The Energy and Petroleum Tribunal itself has embraced that architecture: in **Jane Wawira Njue v Kenya Electricity Transmission Company Limited [2023] KEET 55 (KLR),** the Tribunal, applying *Abidha Nicholus*, held that a wayleave dispute must be dealt with by EPRA in the first instance, the Tribunal exercising appellate jurisdiction thereon. 25. The doctrine of exhaustion which underlies that scheme was restated by the Court of Appeal in **Geoffrey Muthiga Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR**, where it was held that where a dispute resolution mechanism exists outside the courts, the same must be exhausted before the jurisdiction of the courts is invoked; courts ought to be fora of last resort and not the first port of call the moment a storm brews. The doctrine is given statutory expression in Section 9(2) and (3) of the Fair Administrative Action Act, 2015. ***Whether the Interested Party's inaction exhausted the statutory mechanism and conferred jurisdiction on the trial court*** 26. The Appellant does not, and indeed cannot, quarrel with the statutory scheme described above. His case, both at trial and on appeal, is more nuanced: that he in fact invoked the mechanism by his complaint letter dated 4th October 2024; that the Interested Party defaulted on its obligation under Section 23(1) of the Act to make its decision within sixty days; and that upon such default, the mechanism stood exhausted by operation of law, leaving the ordinary courts open to him. Reliance was placed on the use of the word “may” in Section 23(5) of the Act, which it was argued renders recourse to the Tribunal optional. 27. Before engaging with that argument, I must address a threshold contention advanced by the Interested Party: that the letter of 4th October 2024 was not a valid complaint under Regulation 9 of the Energy (Complaints and Dispute Resolution) Regulations, 2012 at all, with the consequence that EPRA was never seized of the matter and the sixty-day clock under Section 23(1) never began to run. Whether the letter met the formal requirements of Regulation 9 is a question that would call for an examination of the letter itself and the circumstances of its receipt an inquiry into facts which, on the authority of *Mukisa Biscuit* (supra), has no place in the determination of a preliminary objection, where the facts pleaded by the opposite party must be assumed to be correct. The Plaint pleaded that a complaint was raised with the Interested Party by the letter of 4th October 2024. I therefore decline to determine the Regulation 9 point, and instead take the Appellant's case at its highest: that the letter was a valid complaint which set the sixty-day period running. As will shortly become apparent, even on that most favourable assumption, the appeal cannot succeed which renders it unnecessary to resolve the Interested Party's threshold contention. 28. The Appellant's central argument is attractive at first blush, but it does not withstand scrutiny, for the following reasons. 29. First, the premise that legislative silence follows the Authority's default is mistaken. The legislature expressly anticipated the very mischief of which the Appellant complains and provided for it. Section 23(1) of the Act obliges the Authority to make its decision on any matter before it within sixty days of receipt of a request. Section 23(5) then provides that where the Authority does not make a decision as provided in subsection (1), the appellant may appeal to the Tribunal within seven days of the expiry of the prescribed period. In other words, the statutory answer to the Authority's inaction is not a migration to the ordinary courts; it is an escalation, within the same statutory scheme, to the Energy and Petroleum Tribunal. The Appellant's remedy upon the lapse of the sixty days in December 2024 lay before the Tribunal, and he did not invoke it. 30. Secondly, the word “may” in Section 23(5) does not bear the weight the Appellant places upon it. The permissive language confers upon the aggrieved party a discretion whether to pursue the grievance further at all; it does not confer a licence to elect a forum outside the statutory scheme. Where Parliament has prescribed a special procedure for the resolution of a particular class of disputes, that procedure must be strictly followed. See ***Speaker of the National Assembly v James Njenga Karume* [1992] KLR 21,** where the Court of Appeal held that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. If the Appellant's construction were correct, the elaborate three-tier mechanism crafted by Parliament, and affirmed in *Abidha Nicholus* (supra), could be circumvented in every case by the simple expedient of awaiting the lapse of sixty days and then filing an ordinary suit. That construction would render Section 23(5) and Section 36 of the Act largely otiose, and cannot have been intended. 31. Thirdly, the exception to the exhaustion doctrine articulated in **Fleur Investments Limited v Commissioner of Domestic Taxes & Another [2018] eKLR,** upon which the Appellant leans heavily, does not avail him. That exception permits judicial intervention where a statutory body has ridden roughshod over the rights of citizens where arbitrariness, malice, capriciousness and disrespect of the rules of natural justice are manifest or where the alternative remedy is otherwise inadequate or ineffectual. The Appellant demonstrated no more than administrative delay or inaction by the Authority. But the adequacy of the alternative avenue is not measured by the Authority's diligence alone; the scheme itself supplies the corrective for that very default, namely the appeal to the Tribunal under Section 23(5). The Tribunal has original civil jurisdiction over disputes between a licensee and a third party under Section 36(3), and its remedial arsenal under Section 36(5) injunctions, penalties, damages and specific performance is co-extensive with everything the Appellant sought in his Plaint. It was not demonstrated, or even suggested, that the Tribunal could not afford him an efficacious remedy. The gateway to the exception was therefore never opened. 32. Fourthly, and for completeness, the Appellant's invocation of legitimate expectation does not advance his case. Whatever expectation arose from the Interested Party's receipt of the complaint was an expectation that the complaint would be determined within the statutory timelines. The frustration of that expectation sounded in the remedies which the statute itself provided escalation to the Tribunal or, in an appropriate case, in judicial review proceedings to compel the Authority to perform its statutory duty. It could not, by itself, vest an ordinary civil court with a jurisdiction the statute had channelled elsewhere. Jurisdiction is conferred by the Constitution and statute; it is not acquired by estoppel, acquiescence or the default of an administrative body. ***Whether the striking out offended Article 159(2)(d) and the overriding objective*** 33. The Appellant's final refuge was Article 159(2)(d) of the Constitution and the overriding objective in Sections 1A and 1B of the Civil Procedure Act, together with the celebrated dictum of Hancox JA in *Githere v Kimungu* (supra) that procedure is the handmaid, and not the mistress, of justice. Those principles are not in doubt. They do not, however, assist the Appellant, for the simple reason that jurisdiction is not a procedural technicality. Article 159(2)(d) was never intended to oust the obligation of litigants to comply with jurisdictional prerequisites, and it is not a panacea for all procedural shortfalls, much less for the absence of jurisdiction itself. A court either has jurisdiction or it does not; where it does not, no invocation of the overriding objective can create it. The trial court did not strike out the suit on a point of form; it downed its tools because Parliament had assigned the dispute, in the first instance, to another forum. In doing so, it acted in fidelity to, and not in breach of, the Constitution, which in Article 159(2)(c) itself commands the courts to promote alternative and statutory dispute resolution mechanisms, and in Article 169(1)(d) and (2) recognizes the place of tribunals established by Parliament. 34. The upshot of the foregoing is that the trial court arrived at the correct conclusion. The dispute pleaded in Tamu MCELC No. E010 of 2025 is, in pith and substance, a wayleave dispute between a third party and a licensee in the energy sector. Its resolution is committed, in the first instance, to the Energy and Petroleum Regulatory Authority and, upon the Authority's decision or default, to the Energy and Petroleum Tribunal. The trial court lacked jurisdiction to entertain it, and properly struck it out. All six limbs of the sole ground of appeal accordingly fail. 35. I would add this. Nothing in this judgment shuts the door of justice in the Appellant's face. His grievance that a power line was erected on his land without consent or compensation is a serious one, and it deserves to be heard and determined on its merits in the forum that Parliament has provided. The Appellant remains at liberty to pursue his complaint before the Energy and Petroleum Tribunal pursuant to Sections 23(5) and 36(3) of the Energy Act, 2019, or to re-agitate the complaint before the Interested Party, subject to any questions of time which shall be for that forum to determine. Equally, should the Interested Party persist in failing to discharge its statutory duty to determine complaints within the timelines set by Section 23(1) of the Act, the remedy of judicial review remains available. What the Appellant could not do was file an ordinary suit in the magistrates' court in disregard of the statutory scheme. ***Costs*** 36. Costs are in the discretion of the Court under Section 27 of the Civil Procedure Act, the proviso to which stipulates that costs shall follow the event unless the Court for good reason orders otherwise. The Respondent and the Interested Party both participated fully in the appeal and successfully resisted it, and no good reason has been advanced or is apparent for departing from the general rule. The Respondent and the Interested Party are accordingly entitled to the costs of the appeal. The costs order of the trial court remains undisturbed. **Disposition** 41. In the end, and for the reasons set out above, the final orders of the Court are as follows: **I. The Appeal dated 11th August 2025 is hereby dismissed;** **II. The Ruling of Hon. A. K. Makoross (SPM) delivered on 25th July 2025 in Tamu MCELC No. E010 of 2025 is hereby upheld;** **III. The costs of the Appeal are awarded to the Respondent and the Interested Party.** **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 31ST DAY OF AUGUST 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **N/A for the Appellant** **Ms. Ododa for the Respondent and h/b for Ms. Chebon for the Interested Party** **Court Assistant: Joanne Omondi.**