The standoff between county governments and the Kenya Power & Lighting Company (KPLC) over electricity debts and unremitted wayleave fees has drawn widespread attention in the past few weeks. The situation escalated when Nairobi County dumped waste at KPLC’s premises in protest, further fuelling the controversy. Additionally, the county’s crackdown on ‘unauthorised’ fibre optic cables mounted on power poles along key highways caused significant disruptions in internet services, prompting the Communications Authority of Kenya (CA), the Information, Communications & Technology (ICT) sector regulator, to issue a statement.

At the heart of the dispute is Nairobi County’s claim that KPLC has failed to remit wayleave fees for fibre optic cables installed on electricity poles situated on county roads.

Understanding wayleave agreements

A wayleave is a legal agreement that allows a utility company or infrastructure provider to install, maintain, or repair its infrastructure on land it does not own. This typically applies to services such as electricity, telecommunications, water, and gas. In return, the landowner or local government (where public land is involved) receives compensation, often called a “wayleave fee”.

While KPLC and Nairobi County have reached a temporary resolution, ongoing discussions on wayleave fees, digital infrastructure, and their broader implications highlight a pressing issue of jurisdictional conflicts that require urgent attention.

Current legal framework governing wayleaves

The basic legal framework governing wayleaves for fibre optic infrastructure includes the Constitution of Kenya, 2010, which grants county governments jurisdiction over county roads, street lighting, and the management of wayleaves and easements on county land.

The Wayleaves Act (Cap. 292, Laws of Kenya), enacted in 1912, provides the legal framework for obtaining wayleaves necessary for installing infrastructure over or under land. The Energy Act, 2019, grants licensed entities, such as KPLC and other energy firms, the right to install, maintain, and operate infrastructure—including electricity lines, oil and gas pipelines, and other energy-related structures—across public spaces such as streets, roads, railways, rivers, and government land. However, this must be done in compliance with county regulations.

Jurisdictional uncertainty

It is unclear whether KPLC, county governments, or both have the authority to approve wayleave requests and charge fees for fibre optic cables installed on electricity poles situated on county roads.

Legal recourse may be sought through intergovernmental dispute resolution mechanisms under the Intergovernmental Relations Act, 2012, which encourages consultation and cooperation before resorting to judicial proceedings. However, the ongoing disputes underscore the need for long-term regulatory clarity.

If left unresolved, internet service providers (ISPs) and other utility providers may find themselves caught in jurisdictional conflicts, leading to unnecessary delays and increased costs for infrastructure deployment.

Way forward: Regulatory reforms & compliance 

A key step in resolving the conflict is developing an industry-wide regulatory framework that clearly defines the jurisdictional boundaries of county governments and KPLC over wayleave approvals and fees.

CA should lead discussions to create standardised wayleave procedures that are applicable across all counties. This would prevent inconsistent and exorbitant wayleave charges imposed by some counties, which hinder infrastructure development.

Additionally, there is growing advocacy to classify internet services as essential infrastructure, exempting fibre optic cables from wayleave fees on public land. This aligns with policies such as Gazette Notice No. 1043 (2022) by the National Computer and Cybercrimes Coordination Committee (NC4), which designated key digital systems as Critical Infrastructure under the Computer Misuse and Cybercrimes Act.

Until a standardised framework is established, utility providers must comply with existing wayleave approval procedures, including securing necessary permits from county governments and relevant authorities before installing fibre optic infrastructure.

Conclusion

The recent dispute between KPLC and county governments has exposed critical gaps in Kenya’s wayleave policies. Moving forward, regulatory clarity will be key to ensuring that infrastructure development—particularly in the digital sector—is not hindered by bureaucratic disputes.