The High Court has dismissed an application by a telecommunications solutions provider seeking to compel Kenya Railways Corporation (KRC) to allow the firm to lay fibre optic cables along the railway corridor.
Justice Josephine Mong’are dismissed the application by Wilken Telecommunications (Kenya) Ltd saying the court lacked the powers to entertain the matter as the firm failed to adhere to the procedure, in seeking the court’s intervention.
“Guided by the above decision, this court finds that it lacks jurisdiction to determine the issue in dispute due to the Applicant’s failure to anchor the same on a suit,” said the judge.
Wilken moved to court in May last year seeking interim orders to compel the corporation to grant it access to the Metre Gauge Railway (MGR) cor-ridor, for laying of the cables, as earlier agreed between the parties.
Further, Wilken sought the court’s intervention by stopping third parties that may have signed contracts with KRC, from interfering with its (Wilken’s) exclusive use of the MGR corridor.
The telecommunications firm said it entered into a lease agreement with
KRC in October 2021 for a wayleave to lay fibre optic cables along the MGR corridor for 20 years. The deal also granted the telco a five-year exclusivity period, starting October 13, 2023, to October 13, 2028.
It alleged that despite the exclusive period under the agreement, KRC had permitted Mobile Telephone Networks Limited (MTN) and its affiliates to use the wayleave to lay their fibre optic cables along the MGR corridor.
According to Wilken, the breach had rendered the corridor inaccessible to the firm, causing it financial losses.
In response, KRC submitted that the application was flawed and could not be remedied because it lacked the mandatory anchoring on a suit.
The State corporation further said the firm failed to pay the agreed sum of Sh52.8 million within 30 days, for the wayleave, as stipulated in the agreement.
