https://new.kenyalaw.org/akn/ke/judgment/keet/2026/11

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: ENERGY AND PETROLEUM TRIBUNAL CASE NUMBER: EPA/E013/2026 KENYA POWER & LIGHTING COMPANY LIMITED VS MWANYOTA CLAN BEKALIMBO FAMILY AND KENYA ELECTRICITY TRANSMISSION COMPANY AND 2 OTHERS JUDGMENT 1. This Appeal arises from the Decision of the Energy and Petroleum Regulatory Authority (“the Authority” or “EPRA”) dated 14th January 2026 in Dispute No. EPRA/PEACP/CP/4/66470050/2025 between the parties herein. The Appeal was lodged before this Tribunal by the Kenya Power and Lighting Company PLC, challenging the entire determination. 2. The dispute before EPRA was on the construction and existence of electricity transmission infrastructure traversing land claimed by the 1st Respondent, the Mwanyota Clan–Bekalimbo Family, situated within Samburu South Group Ranch in Kwale County. The complaint was that the Respondents had allegedly entered upon the family land, excavated holes, erected electricity transmission poles, and installed electricity infrastructure without the complainants' consent, thereby interfering with their proprietary interests and occupation of the land. 3. Upon consideration of the complaint, EPRA rendered its determination. Being dissatisfied with that determination, the Appellant filed its appeal seeking orders setting aside the entirety of the EPRA determination on the grounds set out in their Memorandum of Appeal. The 1st Respondent, Sombo K. Sombo, on behalf of the Mwanyota Clan–Bekalimbo Family, opposes the Appeal in its entirety and urges the Tribunal to dismiss it with costs. 1. The Appeal was disposed of by way of written submissions pursuant to the directions of the Tribunal. The Appellant and the 1st Respondent duly filed their respective submissions setting out their positions on the grounds of appeal. The Tribunal has carefully considered the Memorandum of Appeal, the Record of Appeal, the Replying Affidavit, the parties' written submissions, the authorities cited, and the entire record of the proceedings before the Authority. # APPELLANT’S SUBMISSIONS 1. The Appellant submits that the power line had been constructed after obtaining consent from the then landowner and requested a joint site visit. It argues that EPRA violated Articles 47 and 50 of the Constitution by rendering its determination without affording KPLC an opportunity to be heard after the Environment and Land Court delivered its judgment on ownership of the suit property. 2. According to the Appellant, EPRA had expressly informed the parties that it would await the outcome of the Environment and Land Court (“ELC”) proceedings before determining the complaint. It states that once the ELC judgment was delivered, EPRA was obligated to notify the parties and invite submissions on the scope, effect and applicability of that judgment before relying upon it. It submits that EPRA adopted the ELC findings as conclusive against KPLC and imposed liability without hearing KPLC on the implications of that decision. 3. In support of this argument, the Appellant relies on Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR and Metropolis Star Lab Kenya Ltd v Kioko & Another [2025] KEHC 8211 (KLR) for the proposition that administrative bodies must accord affected parties a fair hearing before making decisions that adversely affect them. The Appellant argues that such conduct offended the constitutional requirements of procedural fairness and fair administrative action 4. The Appellant submits that EPRA wrongly imposed liability upon it while ignoring the role of the person who was the registered owner of the land at the time the infrastructure was constructed. Specifically, it argues that the electricity infrastructure was erected pursuant to the express consent of the person who was then recognized as the lawful owner of the property. It states that KPLC did not enter the land arbitrarily but acted in the discharge of its statutory mandate after obtaining the necessary permissions from the then registered owner and as such any liability for trespass should attach to the party who granted the consent and not to KPLC, which merely acted on the basis of that consent. 1. The Appellant further submits that the impugned determination is unreasonable, irrational and unsupported by adequate reasons because EPRA ignored material considerations, particularly the fact that KPLC acted with the consent of the then recognised proprietor. It argues that by failing to consider relevant facts and attributing liability solely to KPLC, EPRA arrived at an outcome that is contrary to the principles of reasonableness and fairness. # RESPONDENT’S SUBMISSIONS 1. In their submissions, the 1st Respondent urges the Tribunal to dismiss the Appeal and uphold the decision of the Authority. The 1st Respondent submits that EPRA acted lawfully, fairly, and within its mandate in awarding compensation and damages arising from the Appellant’s occupation of the suit property. 2. On the argument submitted by the Appellant that it was denied a fair hearing, the Respondent argues that all parties were fully heard before the EPRA prior to the matter being fixed for determination. EPRA received pleadings, heard the parties, conducted mediation sessions, and undertook a site visit. The only reason the determination was delayed was that ELC had stayed delivery of the decision pending determination of the ownership dispute in Kwale ELC Case No. 89 of 2021. 3. The Respondent argues that once ELC determined ownership of the land, there were no outstanding issues requiring further hearings before EPRA. No party was granted a further hearing after the ELC judgment and therefore, the Appellant cannot claim to have been singled out or denied the right to be heard. According to the 1st Respondent, all parties stood in the same position and EPRA merely proceeded to deliver a decision that had already been pending. 4. The 1st Respondent further contends that EPRA properly relied on the judgment of the Environment and Land Court because the judgment was final, valid, and binding. EPRA was not required to invite parties to make submissions on the meaning or effect of a superior court’s decision. 5. The 1st Respondent argues that EPRA correctly found that the Appellant is liable for compensation and damages because the electricity infrastructure was constructed on land belonging to the 1st Respondent. Ownership having been conclusively determined by ELC, the lawful owner is entitled to compensation for wayleave and for any trespass occasioned by the installation of the infrastructure. 1. The 1st Respondent rejects the Appellant’s attempt to shift liability to the 3rd Respondent. It submitted that the 3rd Respondent was never the lawful proprietor of the suit property and therefore lacked the legal capacity to authorise the construction of electricity infrastructure on the land. Any consent allegedly issued by the 3rd Respondent was unlawful and void ab initio. 2. According to the 1st Respondent, if the Appellant acted upon misrepresentations by the 3rd Respondent or paid compensation to the wrong party, its remedy lies in separate proceedings against the 3rd Respondent and not against the lawful owner of the land. The 1st Respondent should not suffer the consequences of the Appellant’s failure to ascertain the true ownership of the property # ANALYSIS AND DETERMINATION 1. Upon consideration of the pleadings and the written submissions filed by the parties and the applicable law, the Tribunal is of the considered view that the following issues arise for determination: 2. Whether EPRA erred in law and fact by rendering its determination after the judgment in Kwale ELC Case No. 89 of 2021 without inviting the parties to make further submissions on the effect, scope and applicability of that judgment. 3. Whether EPRA erred in law and fact in holding the Appellant liable for compensation, damages and regularisation of the wayleave notwithstanding the Appellant's contention that the electricity infrastructure was constructed pursuant to the consent of the person then represented as the proprietor of the suit property. 4. Whether the determination of EPRA dated 14th January 2026 should be upheld, varied or set aside. # Whether EPRA erred in law and fact by rendering its determination after the judgment in Kwale ELC Case No. 89 of 2021 without inviting the parties to make further submissions on the effect, scope and applicability of that judgment. 1. The Appellant contends that EPRA informed the parties that it would await the outcome of the Environment and Land Court proceedings before determining the complaint. It argues that once the ownership dispute was determined, EPRA was obligated to accord the parties, particularly the Appellant, an opportunity to address the implications of the judgment before relying on it in rendering its determination. The Appellant maintains that failure to do so violated Articles 47 and 50 of the Constitution and rendered the proceedings procedurally unfair. 1. The 1st Respondent, on the other hand, argues that all parties had already been fully heard before the EPRA, mediation had been undertaken, a site visit conducted, and the matter had effectively been concluded save for delivery of the decision. According to the 1st Respondent, the only reason the decision was delayed was to await the determination of ownership by the ELC. It is further argued that once ownership had been conclusively determined, there was no outstanding issue requiring further hearing or submissions before EPRA, and that the Authority merely proceeded to render its pending determination. 2. From the record, the site visit was conducted on the 10th of September 2024. When the Authority did the site visit, the court had already entered judgment determining ownership the substantive issue of ownership of the suit property. The parties, including the Appellant, were aware of the existence of that judgment and had ample opportunity to bring its contents and implications to the attention of the EPRA during the proceedings. In fact, the Appellant wrote a letter to EPRA dated the 21st of November 2024, informing the Authority of the judgment, the new application by a new party, being Mabati Mills Limited, ordering the status quo. 3. The Tribunal notes that the reason EPRA deferred delivery of its determination was not that the ownership dispute remained unresolved. Rather, EPRA had been served with proceedings arising from a subsequent application filed by a third party. EPRA prudently elected to await the outcome of those proceedings to ascertain whether there would be any alteration of the status quo regarding ownership of the land and thereby avoid issuing a determination that could potentially conflict with a subsequent court order. Ultimately, the court dismissed the application by Mabati Mills Limited and as such the position established by the original judgment of the Environment and Land Court remained unchanged. The parties before EPRA were therefore returned to the very same legal and factual position during the site visit. 4. In those circumstances, the Tribunal is unable to find that any new issue arose requiring further submissions from the parties. The question of ownership had already been settled by a competent court. Once the application by Mabati Mills Limited was dismissed, there remained nothing for EPRA to do other than appreciate the legal position as already determined by the court and proceed to render its decision on the basis of the record before it. 5. The Appellant had the opportunity to submit on the judgment as it had been issued at the time the parties were before EPRA. If the Appellant considered the judgment material to the determination of the complaint, nothing prevented it from bringing any concerns regarding its scope, effect, or implications to the attention of EPRA before the matter was reserved for determination. The Appellant cannot successfully contend that it was ambushed by a judgment whose existence was already known to it. It had the opportunity to do during the proceedings before EPRA, as the issue of ownership had been determined. 1. Procedural fairness requires a reasonable opportunity to be heard. In the case of Pinnacle Project Ltd v. Presbyterian Church of East Africa, Ngong Parish & another [2018] eKLR, it was held as follows: *“While the wording of Article 50 of the Constitution on the right to fair hearing prima facie seems to focus on criminal trials, it’s not lost that fair trial in civil cases includes, the right of access to a court, the right to be heard by a competent independent and impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit is led, the right to a public hearing, and the right to be heard within a reasonable time.”* 1. In the present case, the parties were heard, mediation was conducted, a site visit was undertaken, documentary evidence was received, and the matter was ripe for determination. The parties were given a proper, reasonable opportunity to be heard. 2. The subsequent dismissal of a third-party application did not generate any new issue necessitating further hearing. It just allowed EPRA to proceed and give its determination as the status had been reaffirmed. Accordingly, the Tribunal finds that EPRA did not violate the Appellant's rights under Articles 47 and 50 of the Constitution by proceeding to render its determination. This ground of appeal therefore fails. # Whether EPRA erred in law and fact in holding the Appellant liable for compensation, damages and regularization of the wayleave notwithstanding the Appellant's contention that the electricity infrastructure was constructed pursuant to the consent of the person then represented as the proprietor of the suit property. 1. The Appellant contends that it ought not to have been held liable for trespass, compensation and damages because the electricity infrastructure was constructed pursuant to the consent of the person who was at the material time represented as the proprietor of the suit property. The 1st Respondent, on the other hand, argues that the Environment and Land Court conclusively determined ownership and that the lawful proprietor is entitled to compensation irrespective of any arrangements that may have existed between the Appellant and the 3rd Respondent. Furthermore, it argues that at the time of the consent, Samburu Group Ranch was not the owner of the land and as such could not issue consent. 1. The evidence before EPRA demonstrated that the consent relied upon by the Appellant related to parcel Kwale/South Samburu/130, whereas the intrusion complained of and confirmed during the site verification exercise was on parcel Kwale/South Samburu/90. No evidence was produced before EPRA or this Tribunal demonstrating that the Appellant obtained consent from the registered proprietor or lawful occupier of parcel Kwale/South Samburu/90 prior to the installation of the electricity infrastructure. 2. Further, EPRA made a factual finding, following a site visit attended by the parties, that the Appellant's infrastructure had indeed encroached upon the 1st Respondent's land. The Tribunal finds no basis for interfering with that finding. Once it was established that the infrastructure was situated on parcel Kwale/South Samburu/90 and that no consent had been obtained in respect of that parcel, EPRA was entitled to conclude that the occupation was unlawful and amounted to trespass. 3. While the Tribunal appreciates the Appellant's argument that it acted pursuant to consent granted in relation to another parcel of land, such consent could not extend to or authorize occupation of a separate parcel whose proprietor had not granted permission. Moreover, the record indicates that the persons now comprising the 1st Respondent had raised objections and asserted proprietary rights over the land, thereby placing the Appellant on notice that ownership of the affected land was contested. 4. In light of the foregoing, the Tribunal is unable to agree with the Appellant's contention that it ought not to have been held liable because it acted pursuant to consent allegedly obtained from a person represented as the proprietor of the suit property. It is clear that there was no consent with respect to Kwale/South Samburu/90 either from a previous owner or the 1st Respondent who was later confirmed as the owner by court. As such the Respondent was entitled to compensation and regularisation of the wayleave and that the Appellant's intrusion onto the said parcel constituted trespass. The Tribunal therefore finds no merit in the Appellant's complaint regarding liability. This ground of appeal consequently fails. # DISPOSITION 1. Upon consideration of the pleadings in this application, the Tribunal makes the determination that the appeal lacks merit and is hereby dismissed. Dated and delivered at Nairobi, this 4th of June 2026. ……………………..…… Ms. Doris Mwirigi Vice Chairperson ……………………..…… Eng. Buge Hatibu Wasioya Member ……………………..…… Mr. Feisal Shariff Ibrahim Member SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. DORIS KINYA MWIRIGI BUGE HATIBU WASIOYA FEISAL SHARIFF IBRAHIM** ENERGY AND PETROLEUM TRIBUNAL ENERGY AND PETROLEUM TRIBUNAL Date: 2026-06-06 07:16:27