[2024] KELAT 516 (KLR)

Mathew v Kenya Electricity Transmission Company Limited (KETRACO) (Tribunal Case E005 of 2023) [2024] KELAT 516 (KLR) (31 January 2024) (Ruling)

Neutral citation: [2024] KELAT 516 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E005 of 2023

NM Orina, Chair

January 31, 2024

Between

Earnest Karagania Mathew

Claimant

and

Kenya Electricity Transmission Company Limited (KETRACO)

Respondent

Ruling

1. The Claimant in this case, Mr. Earnest Karagania Mathew has approached the Tribunal on the allegation that the Respondent has refused to pay a claim for compensation for structures which were erected on land reference number Nanyuki/Marura/Block 8/5467 (Nturukuma), where a wayleave had been created by the Respondent.

2. It is the Claimant’s case that whereas he was compensated for the land, the Respondent has failed and/or neglected to pay for the structures which were upon the land despite demands to that effect.

3. The Claimant, therefore, seeks an order compelling the Respondent to compensate the Claimant for the structures which were allegedly upon the land before the wayleave was created. The Tribunal has also been asked to award interest and costs of the suit.

4. On its part, the Respondent has raised a preliminary objection challenging this Tribunal’s jurisdiction to adjudicate over the matter.

5. When this matter came up for a mention on the 4th January 2024, the Tribunal directed that the preliminary objection raised by the Respondent be addressed first, as a matter of good order. The Tribunal, therefore, directed the Claimant to file a response and all parties to file submissions thereto.

6. We have now considered the preliminary objection dated 4th January 2024, and the response by the Claimant to the preliminary objection dated 9th January 2024. The rival submissions by the Respondent and the Claimant were filed on 15th January 2024 and 30th January 2024, respectively.

7. The preliminary objection is premised on two grounds: that the Tribunal lacks jurisdiction; and, that the Claim contravenes Sections 3(1), 10, 11(e), (f), (i), (k) & (l), 23, 24, 36, 40, 42 and 224(2)(e) of the Energy Act, 2019 and Regulations 2,4,7, and 9 of the Energy (Complaints and Dispute Resolution) Regulations, 2012.

8. In response to the preliminary objection, the Claimant argues that the preliminary objection is misplaced as it is based on a misapprehension of the law. The Claimant further argues that the Land Act confers express jurisdiction on the Land Acquisition Tribunal to handle cases like the instant one under Section 133C (6). In any case, the Claimant contends that overlapping jurisdiction does not deprive the Tribunal jurisdiction.

9. We have considered the submissions by the parties in support of and in opposition to the preliminary objection. The issue for determination is the jurisdiction of this tribunal to entertain the Claim before us.

10. As we held in Tom Mwachiti Mwero (suing as a representative of the Estate of Fredrick Mwachiti – Deceased) vs. Kenya Railways Corporation and another (TRLAP no. E001 of 2023):It is trite law that a court or tribunal cannot adjudicate over a matter without jurisdiction to do so.1 Such jurisdiction flows from the Constitution or any relevant statute. It is without question that a court of law or tribunal must satisfy itself of existence of jurisdiction, suo motu, or when a question of jurisdiction has been raised as it has been in the instant case.1See, for instance, the celebrated case of Owners of Motor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (1989) IKLR.

11. The jurisdiction of the Tribunal is provided for, primarily, under Section 133C which we reproduce herewith, verbatim:133C. Jurisdiction of the Tribunal(1)The Tribunal has jurisdiction to hear and determine appeals from the decision of the Commission in matters relating to the process of compulsory acquisition of land.(2)A person dissatisfied with the decision of the Commission may, within thirty days, apply to the Tribunal in the prescribed manner.(3)Within sixty days after the filing of an application under this Part, the Tribunal shall hear and determine the application.(4)Despite subsection (3), the Tribunal may, for sufficient cause shown, extend the time prescribed for doing any act or taking any proceedings before it upon such terms and conditions, if any, as may appear just and expedient.(5)If, on an application to the Tribunal, the form or sum which in the opinion of the Tribunal ought to have been awarded as compensation is greater than the sum which the Commission did award, the Tribunal may direct that the Commission shall pay interest on the excess at the prescribed rate.(6)Despite the provisions of sections 127, 128 and 148 (5), a matter relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way shall, in the first instance, be referred to the Tribunal.(7)Subject to this Act, the Tribunal has power to confirm, vary or quash the decision of the Commission.(8)The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23 (2) and 47 (3) of the Constitution, using the framework set out under the Fair Administrative Action Act or any other law.(1)The Tribunal has jurisdiction to hear and determine appeals from the decision of the Commission in matters relating to the process of compulsory acquisition of land.(2)A person dissatisfied with the decision of the Commission may, within thirty days, apply to the Tribunal in the prescribed manner.(3)Within sixty days after the filing of an application under this Part, the Tribunal shall hear and determine the application.(4)Despite subsection (3), the Tribunal may, for sufficient cause shown, extend the time prescribed for doing any act or taking any proceedings before it upon such terms and conditions, if any, as may appear just and expedient.(5)If, on an application to the Tribunal, the form or sum which in the opinion of the Tribunal ought to have been awarded as compensation is greater than the sum which the Commission did award, the Tribunal may direct that the Commission shall pay interest on the excess at the prescribed rate.(6)Despite the provisions of sections 127, 128 and 148 (5), a matter relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way shall, in the first instance, be referred to the Tribunal.(7)Subject to this Act, the Tribunal has power to confirm, vary or quash the decision of the Commission.(8)The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23 (2) and 47 (3) of the Constitution, using the framework set out under the Fair Administrative Action Act or any other law.

12. The Preliminary Objection raised by the Respondent is on the premise that the Energy and Petroleum Regulatory Authority (EPRA) enjoys original jurisdiction in disputes involving wayleaves. In affirming this argument, the respondent has relied on the Court of Appeal decision in Abidha Nicholus v Attorney General & others (Civil Appeal no. 21 of 2021 (Kisumu); wherein the Court, while citing the provisions of the Energy Act (Complaints and Dispute Resolution) Regulations 2012, noted that EPRA had jurisdiction over complaints on among other things, wayleaves.

13. On the first issue raised by the Respondent, it is argued that pursuant to Section 3(1) of the Energy Act, where there is a conflict between the Act and any other Act, the Energy Act shall prevail on all matters regulated under the Energy Act. The referenced section states as follows:3. Acts to prevail -(1)If there is a conflict between this Act and any other Act, this Act shall prevail on the following matters –(a)the importation, exportation, generation, transmission, distribution, supply or use of electrical energy;(b)the exploration, production, transportation, distribution, and supply of any other form of energy; and(c)all works and apparatus for any or all of these purposes.

14. The question then before us is whether a dispute arising out of laying of wayleaves is a matter within the exclusive jurisdiction of the bodies under the Energy Act as argued by the Respondent. Section 175 of the Energy Act which is specific to conflicts touching on wayleaves states as follows:175. Payment of compensationIf any difficulty or question arises as to the amount, entitlement to compensation or person entitled to compensation payable under this Act, the determination shall be made in accordance with the provisions of the relevant written law.

15. This Section refers to “the relevant law” and makes no specific reference to any body established under the Act. A relevant law, to our understanding, and in this context, is the law which at the moment deals with determination of disputes in regard to the matters in question. Section 133C of the Land Act, 2012 which establishes the Land Acquisition Tribunal is a relevant law in this case and we explain our reasons below.

16. The Land Act in Section 133C (6), outlined above, gives the Tribunal, as a court of first instance, jurisdiction in matters relating to creation of wayleaves. To our mind, there is no confusion or overlap. Creation of wayleaves relates to acquisition of interests in land and hence by dint of the subject matter, such disputes can only be properly adjudicated before the Land Acquisition Tribunal. Even though we are clear in our minds, as determined below, that the intention of the legislature is very clearly stated under the Land Act, we are also convinced that looking at the expertise of the agencies under the Energy Act vis-à-vis the Land Acquisition Tribunal would lead to the conclusion that the latter is the right forum to adjudicate the instant case.

17. Furthermore, if one were to look at the two statutes, it is the Land Act that provides for jurisdiction in regard to disputes relating to creating of wayleaves in a precise manner. The reference to relevant written law finds precise mention in the Land Act rather than the Energy Act. Indeed, the authority relied upon by the Respondent, Speaker of the National Assembly v. Karume [1992] eKLR, supports a conclusion that the right forum for matters arising from creation of wayleaves is the Land Acquisition Tribunal. In the Karume case, the Court of Appeal stated as follows:Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.

18. The question the Respondent does not address in its Preliminary Objection is what the use of the very precise language in the Land Act is vis-à-vis the general jurisdiction the Respondent reads into the Energy Act. Why did the legislature explicitly confer upon the Land Acquisition Tribunal jurisdiction in regard to wayleaves when the Energy Act was in place?

19. We do not find in our establishing statute, or indeed in the arguments put forth by the Respondent a provision that allows us to exercise discretion to down our tools as suggested by the Respondent, even in the face of very precise jurisdiction. On the other hand, there is no precise provision in the Energy Act that confers exclusive jurisdiction on matters wayleaves on EPRA, akin to the language of Section 133C (6) of the Land Act.

20. It has also been argued that the Energy Act establishes dispute resolution mechanisms which have to be followed as per the determination of the Court of Appeal in Abidha Nicholus referred to above. First, we reiterate our finding above that a compensation dispute arising out of creation of wayleaves is a matter primarily touching on acquisition and hence the subject matter specific jurisdiction is that established under Section 133C (6) of the Land Act. Secondly, and to distinguish the findings in Abidha Nicholus as well Sombo and others vs. KETRACO and others (ELC Case no. E021 of 2022 (Kwale) (both authorities relied on by the Respondent), the Land Act confers primary jurisdiction on the Land Acquisition Tribunal through the 2019 amendments in regard to creation of wayleaves. On the contrary, the Court of Appeal in Abidha Nicholus and the Environment and Land Court in Sombo and others, held that jurisdiction, in the first instance, lay with the Energy and Petroleum Regulatory Authority (EPRA). We believe that at the time these two matters were commenced and later on determined, the Land Acquisition Tribunal was not yet operational and it did not feature in the determinations.

21. Even if, arguendo, we were to be convinced that there exists an overlap between the Land Acquisition Tribunal and EPRA, as institutions of first instance, the two are differentiated by their mandate. While EPRA is a regulatory agency, the Tribunal is an adjudicatory body. We hasten to add that the Tribunal’s first instance determinations are only appealable to the Environment and Land Court rather than the Energy Tribunal as would be the case for decisions of EPRA. So even if the two, EPRA and the Tribunal, were to be seen as having analogous and overlapping jurisdiction, they do not have access to the same tools. Of interest would be Section 133C (8) of the Land Act which empowers the Tribunal to hear and determine a complaint before it arising under Article 23(2) and 47(3) of the Constitution using the framework of the Fair Administrative Action Act. In our view, this tool, which is not available to EPRA makes the Tribunal the forum conveniens in resolution of disputes that touch on and affect rights to land.

22. Furthermore, we are unconvinced that subsidiary legislation, which the Respondent relies on, can oust jurisdiction established by statute. In this case the provisions of Regulations 2, 4, 7 and 9 of the Energy (Complaints and Dispute Resolution) Regulations 2012 cannot oust the provisions of Section 133C (6) of the Land Act, 2012. Therefore, bestowment of jurisdiction on a regulatory body by subsidiary legislation cannot oust the jurisdiction of a Tribunal which is vested in an Act of Parliament. This matter is settled by reference to the hierarchy of laws whose net effect is that the provisions of a subsidiary legislation cannot supersede statute. See, Margaret Wangui Gachara V Bank of India Limited [2008]eKLR where the High Court held thus:A valuation of the property before sale is a requirement contained in the subsidiary legislation and not in substantive law under the Auctioneers Act. Following the principles of interpretation, a substantive law takes precedence over subsidiary legislation. It is my view that rule 15(e) of the Auctioneers Rules cannot oust the provisions of section 74 of Registered Land Act, to require that a valuation of within 12 months of the date of sale is a prerequisite to the crystallization of a Chargee’s statutory power of sale.

23. It is also noteworthy that disputes in relation to creation of wayleaves are not mentioned in the Energy (Complaints and Dispute Resolution) Regulations as would be the case with Section 133C (6) of the Land Act. In conclusion, therefore, the jurisdiction of EPRA does not supersede that of the Tribunal.

24. For the above reasons, we hereby dismiss the Respondent’s preliminary objection with costs to the Claimant.

DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JANUARY 2024. ………………………DR. NABIL M. ORINAChairpersonIn the presence of:Mr. Ondari for the ClaimantNo appearance for the RespondentCA: Everlyne