[2024] KEET 391 (KLR)

Njue v Kenya Electricity Transmission Company Limited (Tribunal Appeal E017 of 2023) [2024] KEET 391 (KLR) (1 February 2024) (Ruling)

Neutral citation: [2024] KEET 391 (KLR)

Republic of Kenya

In the Energy & Petroleum Tribunal

Tribunal Appeal E017 of 2023

Kioko Kilukumi, Chair, D.K Mwirigi, Vice Chair, B.H Wasioya & F.S Ibrahim, Members

February 1, 2024

Between

Jane Wawira Njue

Appellant

and

Kenya Electricity Transmission Company Limited

Respondent

Ruling

1. The Application before us is an oral application made by the Advocates for the Respondent on 21st December, 2023 asking this Tribunal to consider whether the Decision of the Energy and Petroleum Regulatory Authority (EPRA) delivered on 31st August, 2023 under Reference Number 29745534 is a nullity as the same was delivered outside the mandatory Sixty (60) days under the Energy Act, 2019.

2. The Appellant herein filed a Complaint REF 29745534 before the Energy and Petroleum Regulatory Authority (EPRA) on 17th April, 2023 pursuant to the ruling of the Energy and Petroleum Tribunal (the Tribunal) delivered on 1st March, 2023 to deal with the subject matter of the dispute which is a Wayleave issue as the Tribunal had no jurisdiction to determine such matters in the first instance.

3. To further give a historical perspective to this matter, it is important to point out that the Appellant, Jane Wawira Njue, had filed this matter before the Environment and Land Court (ELC) at Thika in 2021 under ELC Petition No. E008 of 2021and the Parties filed all the necessary pleadings. Towards the conclusion of the matter, the Parties raised the issue of Jurisdiction of the ELC in light of the provisions of the Energy Act, 2019 which establishes and gives jurisdiction of energy disputes to the Energy and Petroleum Tribunal. Guided by this, the ELC on 31st October, 2022 ordered that the matter be transferred to the Tribunal for determination as“the court was not the proper adjudicatory body to hear and determine the dispute ...”The matter was filed before the Tribunal in December, 2022.

4. The Tribunal considered the Petition filed and delivered its ruling on 1st March, 2023 wherein itreferred the matter to EPRA as it had no original jurisdiction to determine the wayleave dispute in the first instance.

5. The Appellant then filed a Complaint with EPRA, REF: 29745534 on 17th April, 2023 to hear anddetermine the complaint. The Parties filed all their documents and EPRA heard the matter and delivered its decision on 31st August, 2023.

6. The Appellant then filed the present appeal against the decision raising a number of grounds forits appeal against the said decision.

7. The Appeal came for a mention on 21st December, 2023 for parties to confirm compliance andwhether the parties had filed all their documents. It was during this mention that the Advocate for the Respondent made an application and raised issues regarding the legality of the Decision of EPRA which decision was the subject matter of appeal in this instant matter. Counsel submitted that Section 23 of the Energy Act, 2019 requires that EPRA makes its decisions regarding complaints filed before it within Sixty (60) days. He stated that this a mandatory requirement and failure to deliver its decision within the prescribed time renders such a decision a nullity. He further stated that EPRA’s decision delivered on 31st August, 2023 was rendered outside the mandatory Sixty (60) days and thus a nullity and therefore cannot be the subject of appeal.

8. At this point, the Tribunal directed that the question of the legality of the decision being appealedfrom be determined before going further to examine the merit of the Appeal. The Parties were then directed to file their submissions on the question whether the decision of EPRA was a nullity and the Tribunal set 1st February, 2024 as the Ruling date.

9. The question before this Tribunal is whether the decision of EPRA delivered on 31st August, 2023 is a nullity and whether the appeal herein is rendered nugatory by virtue of it being an appeal against a decision which is made outside the law and without jurisdiction?

10. Section 23 of the Energy Act, 2019 provides that:23. Decisions of the Authority(1)The Authority shall within sixty days from the date of receipt of a request by an applicant, makeits decision on any matter before it.(2)A decision of the Authority shall be in writing and any order given and reasons thereof shall beserved upon all parties to the proceedings, and may be published in the Gazette as prescribed by regulations.(3)The Authority shall, within seven days of making a decision, communicate such decision to theparties involved.(4)All orders of the Authority shall become effective on the date of entry thereof, and shall becomplied with within the time prescribed therein.(5)Where the Authority does not make a decision as provided in subsection (1) the appellant mayappeal to the Tribunal within seven days of the expiry of the prescribed period.

11. It is not contested that Appellant filed her complaint before EPRA on 17th April, 2023. It isfurther not contested that EPRA delivered its ruling on 31st August, 2023 well beyond the 60 days within which it ought to have rendered a decision on the Appellant’s complaint reference number 29745534.

12. Counsel for the Respondent argued that the decision of EPRA is a nullity as it was made outsidethe period provided under Section 23 of the Energy Act, 2019. He argued that a court’s jurisdiction is derived from legislation and where legislation provides specific timelines within which it must render a decision, such court loses its juridical powers where it fails to render the decision within the prescribed timeframe. In his submissions and in support of his argument, Counsel cited the Court of Appeal decision in Civil Appeal No. E039 of 2021, Aprim Consultants v Parliamentary Service Commission & Another where the court held as follows;“Our reading of the Act is that the High Court was under an express duty to make its determination within the time prescribed. During such time did its jurisdiction exist, but it was a time bound jurisdiction that ran out and ceased by effluxion of time. The moment the 45 days ended, the jurisdiction also ended. Thus any judgement returned outside time would be without jurisdiction and therefore a nullity, bereft of any force of law.That legal conclusion remains irrespective of the avowed reasons, no matter how logical, sound, reasonable or persuasive they may be. No amount of policy, wisdom or practicality can invest a decision made without jurisdiction with any legal authority."

13. The Court in the above cited matter went further to state as follows;“Without a doubt, there are serious practical difficulties with meeting timelines set by the Act, and it may well be that given the sheer numbers of such judicial review matters that get filed before the relevant division of the High Court; the limited number of judges to handle them; and numerous other matters. Besides, as public procurement is but one of the areas in administrative law that spawns judicial review applications, the wisdom of so short a timeline may be fairly questioned. One may wonder whether a situational analysis or any other scientific, data-based research was done to determine the reality on the ground and inform the time that is practical to effectuate the legitimate desire for timelines in disposal of public procurement and disposal disputes. It would seem quite basic that before imposition of timelines sort in section 175 of the Act, there should have been a robust engagement with stakeholders, foremost of whom would be the Judiciary leadership and specifically the judges and registrars of the relevant division. We very much doubt that such engagement did occur given the patently unrealistic timelines in the provision."

14. In his response, Mr. Opiyo for the Appellant agreed with the submission of the Respondentcounsel and submitted that EPRA indeed rendered its decision outside the statutory 60 days provided in law despite their reminders. He stated that the decision is indeed a nullity if the provisions of Section 23 of theEnergy Act, 2019 are strictly applied as has been the case in instances where statutes have provided strict timelines for dispute resolution. Counsel urged the Tribunal to consider the circumstance of the current dispute which had dragged for over Ten (10) years before different fora and urged the Tribunal to ensure that justice is done for the Appellant.

15. Counsel for the Appellant in his submission urged the Tribunal to consider the matter under itsoriginal jurisdiction and to hear and determine it afresh and disregard the impugned decision of EPRA.

16. From the foregoing, it is clear that the decision of EPRA which was made outside the statutory 60 days’ period is a nullity and as such no appeal can lie against such a decision. The reasoning is that EPRA having made the decision outside the prescribed timeframe lacked jurisdiction to render the decision it rendered which is subject of Appeal in the instant case. This Tribunal is bound by decisions of higher courts and the above cited decision of Civil Appeal No. E039 OF 2021, Aprim Consultants v Parliamentary Service Commission & Another binds this Tribunal. It will therefore mean that the decision rendered by EPRA is a nullity as it was rendered out of time. The question then becomes, what remedy lies in this Tribunal for the Appellant in the instant matter?

17. Section 23 (5) of the Energy Act, 2019 is instructive that where EPRA fails to render a decision regarding a dispute before it within the timeframe stipulated, then a party can appeal to the Tribunal which then hears and determines such a complaint or dispute. In this instant case, EPRA rendered a decision outside the 60 days and from the above analysis, it is clear that such a decision is a nullity.

18. The dispute herein is a wayleave dispute which has dragged for quite a long time. It is not indispute that the Appellant is the registered proprietor of the land on which the Respondent encroached. The dispute seems to be mainly on the issue of the quantum of compensation due to the Appellant. This in our opinion is a dispute which the Tribunal has jurisdiction to hear and determine at this juncture because of the failure of EPRA to render a valid decision and in accordance with Section 23 (5) of the Energy Act, 2019.

19. In view of the above analysis and in order to expediate the hearing and determination of thisdispute, the Tribunal orders the following: -a.The Decision of EPRA appealed from herein which was delivered on 31st August, 2023 is herebydeclared invalid, null and void.b.The Record of Appeal filed herein shall be deemed to have been filed under Section 23 (5) of the Energy Act, 2019 and shall be considered as duly filed pleadings as per the rules of the Tribunal.c.The Parties are given 7 days within which to file and serve any further documents and/orpleadings they deem necessary to ensure the matter is determined expeditiously.d.The matter will be mentioned on 14th February, 2024 to confirm filing of all pleadings andsubmissions.e.Each party to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 1ST DAY OF FEBRUARY, 2024. .........................MR. KIOKO KILUKUMI SCCHAIRPERSON.........................MS. DORIS KINYA MWIRIGIVICE CHAIRPERSON.........................ENG. BUGE HATIBU WASIOYAMEMBER.........................MR. FEISAL SHARIFF IBRAHIMMEMBERSIGNED BY KIOKO KILUKUMIDATE 01-02-2024