REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CONSTITUTIONAL PETITION NO. E006 OF 2024
(Coram: Andayi W. F., J.)
IN THE MATTER OF: ARTICLES 3, 10, 19, 20, 22, 23(1) & (3), 24, 27, 46, 48, 159(1), 160(1), 165(3)(b), 258(1(, 259 OF THE CONSTITUTION OF KENYA,
AND
IN THE MATTER OF VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL FREEDOMS, PRACTICE AND PROCEDURE RULES)
AND
IN THE MATTER OF THE ENERGY ACT (CAP 314) AND CONSUMER PROTECTION ACT (CAP. 501) LAWS OF KENYA.
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 2, 3, 10(1), 27, 46, 47, 48, 159(1) & (2) AND 258(1) OF THE CONSTITUTION OF KENYA
BETWEEN
BACKDOORS LIMITED………………………………………………PETITIONER
AND
KENYA POWER AND LIGHTING COMPANY LIMITED……..1ST RESPONDENT
ENERGY & PETROLEUM REGULATORY AUTHORITY…….2ND RESPONDENT
RULING
1. The petitioner filed a constitutional reference dated 15/8/2024 seeking various reliefs against the respondents being declarations of unconstitutionality by the respondents and/or delay to address the petitioner’s complaint over an electricity bill for electric power consumed at the petitioner’s premises, breach of the constitution and abdications of duty by the respondents to respect and uphold the constitution, an order of mandamus against the 2nd respondent to act on the complaint, an award of compensation to the petitioner for loss incurred and an award of damages for breach of the petitioner’s constitutional rights.
2. The petitioner’s complaint arises from a dispute over an electricity bill issued on 6/11/2023 by the 1st respondent to the petitioner in the sum of KShs 262,954/= which the petitioner terms as erroneous and reconnection fee of KShs 13,920/= dated 14/12/2023 which the petitioner terms as unjustified over the petitioner’s electricity metre number 143931230. It is the petitioner’s contention that it has raised these complaints with the 2nd respondent but it has failed to act upon them under the provisions of the Energy Act (Cap. 314) Laws of Kenya.
3. It thus contends that its rights inter alia to goods and services of reasonable quality and the right to information necessary for it to benefit from the goods and services as a consumer of the 1st respondent’s services being electricity supply have been violated.
4. It contends further that its constitutional right to be seen as equal before the law, equal benefit of the law, right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair has been breached as the 2nd respondent has failed to act on the petitioner’s complaint lodged with it within 60 days as provided for under the Energy Act and further that the respondents have failed to provide it with written reasons for the failure to act.
5. The petitioner has cited various constitutional provisions and statutory provisions it alleges the respondents are in violation.
6. Upon being served, each of the respondents filed a separate preliminary objection to the petition contending that this court lacks jurisdiction to entertain the petition as filed.
7. The preliminary objection by the 1st respondent dated 19/12/2024 and by the 2nd respondent dated 10/12/2024 bear common grounds that the petition and the application by the petitioner offend the following provisions of the law:
1. Sections 3(1), 10, 11(e), (f), (i), (k) & (l), 23, 24, 25, 36(1) & (2), 40, 42, 159(3), 160(3) and 224(2)(e) of the Energy Act (Cap. 314) Laws of Kenya together with;
2. Sections 2, 4, 7 and 9 of the Energy (Complaints and Dispute Resolution) Regulations 2012 as read together with;
3. Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010 and
4. Sections 9(2) and 3 Fair Administrative Action Act, 2015.
8. The 2nd respondent contends further that the suit transgresses the doctrine of exhaustion of remedies as the Applicant has approached the wrong forum for the grievances set out therein while disdaining the o provisions under Article 159(2) of the Constitution of Kenya, together with the provisions under the Energy Act No. 1 of 2019.
9. The preliminary objections were disposed of by way of written submissions filed by all the parties to the petition.
10. Learned counsel for the 1st respondent submits that from a reading of the matters pleaded and the prayers sought by the petitioner, the issue in the petition is a dispute on disconnection and reconnection of electricity and however cunningly the petition is couched, the same is a complaint as envisaged under the cited laws and should be dealt with under the Energy & Petroleum Regulatory Authority and the Energy & Petroleum Tribunal; as the limitation of jurisdiction of this Court is expressly barred by the provisions of the Energy Act.
11. Learned counsel submits that section 5 of the Civil Procedure Act limits the court’s exercise of its jurisdiction except where it is either express or implied barred as follows:
“Any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred.”
12. Learned counsel has cited various authorities to back up the submissions that where other bodies have been given jurisdiction by the law to handle disputes then superior courts should in the first instance defer to them to deal with the dispute. Among the cases is where the Supreme Court in Albert Chaurembo Mumbo & 7 others v. Maurice Munyao & 148 others; SC Petition No 3 of 2016, [2019] eKLR held that:
“[118] In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the disputes as provided for in the relevant parent statute.”
13. Learned counsel submits further that the jurisdiction in this matter is with the Energy & Petroleum Regulatory Authority and Energy & Petroleum Tribunal as has been expressly set out in the Energy Act, and therefore this court lacks jurisdiction to hear and determine the petition. It should thus be struck out with costs to the 1st Respondent. He has cited the case of Republic v. Magistrate Court, Mombasa; Absin Synergy Limited (Interested Party) Judicial Review E033 of 2021) [2022] KEHC 10 (KLR) where the Court stated that:
“It is important to point out that jurisdiction is determined on the basis of pleadings and not the substantive merits of the case.”
14. Learned counsel has emphasized that due to lack of jurisdiction, this court cannot even transfer the suit to the proper forum for resolution and the parties cannot even by consent purport to do so as was held in the case of Equity Bank Limited v. Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR.
15. Learned counsel submits that the issue of jurisdiction has been raised at the earliest opportunity by the 1st respondent and the same should be disposed of first.
16. Learned counsel for the 2nd respondent submits in support of the preliminary objection that in view of the matters pleaded by the petitioner together with the prayers sought in the petition, that the petitioner’s case is on the issue of disconnection/reconnection of electrical energy, supplied by the 1st respondent to the petitioner. Consequently, the claim pertains to issues that are expressly regulated matters that fall under the Energy Act which provides for the mode of resolution of disputes arising under the Act and vests the Energy and Petroleum Regulatory Authority, the 2nd respondent and the Energy and Petroleum Tribunal with the mandate to resolve.
17. Learned counsel submits that in filing the petition herein, the petitioner has disregarded critical provisions of the law which provide for the mandate and functions of the 2nd respondent, establish the framework for dispute resolution, and set out the mechanisms for appeals available to aggrieved parties. That these provisions require that before filing suit, the dispute resolution mechanisms under the Energy Act must be pursued and exhausted but the appellant is disinclined to do so in spite of having initiated the dispute resolution mechanism provided for under the Act by reporting his complaint to the 2nd respondent. In support of these submissions, learned counsel cites the case of Patrick Musimba v National Commission & 4 Others (2016) eKLR the Court held that: -
“Where there is procedure for redress (for violations of Constitutional rights and freedoms) available elsewhere, that redress must be pursued within the rubric provided. This Court must exercise restraint and first give an opportunity to the relevant bodies or State Organs to deal with the dispute as provided in the relevant statute.”
18. Learned counsel for the petitioner submits that the petition raises issues on infringement of the petitioner’s constitutional rights. He has cited the case of Wekesa v Kenya Power & Lighting Company Limited & another [2022] KEHC 12769 (KLR) where the High Court considering a preliminary objection similar to the one in the present case held that the question whether there has been a violation, threat to violation of a right or denial of a fundamental freedom is the mandate of the High Court under Article 165 of the constitution and that it was not within the mandate of any of the other mechanisms to determine whether the rights of the petitioner had been infringed or his freedoms denied.
19. I have considered the petition filed herein, the grounds and the affidavit in support thereof, the common preliminary objection points raised thereto by the respondents respectively and the submissions by learned counsels for the parties.
20. It is the petitioner’s case as pleaded in the petition that there is a dispute between itself and the service provider, KPLC, the 1st respondent herein over disconnection of electricity to the petitioner’s premises due to a disputed bill for consumption of the electricity.
21. Where such a dispute exists, the law provides and I do find here that the petitioner is aware that it should be referred for resolution to the Energy and Regulatory Authority as provided for under section 160(3)(a) of the Energy Act which provides that if any dispute arises as to any charges it shall be referred to the Authority.
22. Section 159(3) and (4) also makes provision for dispute resolution as follows:
“(3) If any dispute arises under this section as to recalculation of electrical energy consumed by consumer or as to interference with any meter, such dispute shall be referred to the Authority for determination. (emphasis in Italics and underline mine).
(4) Where any dispute referred to in subsection (3) has been referred to the Authority the licensee shall not exercise any of the powers conferred by this section until final determination of the dispute:
…”
23. The submission by learned counsels for the respondents that there is a clear dispute resolution mechanism for such dispute under the Energy Act and the same should be followed is correct.
24. In spite of the respondents’ stance in this matter, the 2nd respondent has not indicated whether or not it acknowledges the existence of such a dispute. It is the petitioner’s contention that the 2nd respondent has never replied to its complaint. Had they acknowledged the existence of the dispute even by responding to the petitioner’s complaint then their contention would have borne some weight even if not to address the issue of jurisdiction raised herein.
25. All the same, it is the petitioner’s contention that it indeed referred its complaint to the 2nd respondent through e-mail on 30/12/2023 and on 12/1/2024 through a formal complaint by letter through its advocates. The Energy and Petroleum Regulatory Authority has however not responded to this issue and that is why it has come to court to compel the Authority the 2nd respondent to take up the issue for resolution. That is clearly what is contained in the prayers sought by the petitioner. The petitioner is not asking that this court resolves the dispute, rather that by failing to respond to the issue, the respondents are in breach of its rights under the constitution. The prayers in the petition are quite clear that the petitioner wants the 2nd respondent to take up the issue for resolution expeditiously. They are as follows:
i. A declaration that the Respondents’ delay in addressing the disputed electricity bill (Ref. No. 231110020887063) issued on 6th November 2023 and the reconnection fee bill dated 14th December 2023 violates Articles 27, 46, and 47 of the Constitution, rendering the inaction unconstitutional, null, and void.
ii. A declaration that the Respondents’ actions contravened Articles 10, 27, 46, 47, and 48 of the Constitution.
iii. A declaration that the Respondents abdicated their constitutional duties under Article 47(1) and (2).
iv. An order of Mandamus compelling the 2nd Respondent to complete investigations and issue a decision concerning the disputed electricity bill for meter no. 143931230.
v. Compensation of Ksh. 1,176,000 for direct losses incurred due to electricity disruption at Backdoor Villas.
vi. Damages for breach of the Petitioner’s constitutional rights and freedoms.
26. Learned counsel for the 2nd respondent submits that the petitioner, having initiated the dispute resolution mechanism under the Energy Act it ought to further the same in terms of section 23(5) of the Act which provides that:
“where the Authority does not make a decision as provided in subsection (1) (within 60 days after receipt of the complaint), the appellant may appeal to the Tribunal within seven days of the expiry of the prescribed period”
27. Learned counsel submits that from the foregoing provision, the petitioner ought to have lodged this matter as an appeal before the Energy and Petroleum Tribunal within 7 days after the expiry of 60 days since the lodging of the complaint before the Energy and Petroleum Regulatory Authority.
28. I do not find think that section is applicable to the present issue. There are many different types of matters including complaints handled by the Authority under the Energy Act and some have their procedures of handling provided for in the Act. The issues herein would properly fall under sections 159 and 160 of the Act under which I believe the proper complaints handling procedure is provided for under the Energy (Complaints and Dispute Resolution) Regulations, 2012.
29. Even then, the issue is not whether or not any of the provisions of the Energy Act are in conflict with the constitution as submitted by learned counsel for the 2nd respondent. That the petitioner should make an appeal to the Tribunal even where the Authority has not acknowledged that it has taken up the petitioner’s dispute is in itself defeatist.
30. The constitutional petition filed herein is not to call upon this court to resolve the dispute between the petitioner and the 1st respondent. It is clear from the prayers sought that it is to determine whether the respondents’ actions or inactions towards the petitioner are in breach of its constitutional rights. I agree with and I am persuaded to follow the decision of the High Court in Wekesa v Kenya Power & Lighting Company Limited & another [2022] KEHC 12769 (KLR) that whether there has been a violation, threat to violation of a right or denial of a fundamental freedom is the mandate of the High Court under Article 165 of the constitution and not any of other mechanisms provided for under the Energy Act to determine whether the rights of the Petitioner have been infringed or his freedoms denied.
31. For the said reason, I find that the preliminary objections filed herein by both respondents are not well founded and the same are dismissed.
32. Costs shall abide by the outcome of the petition.
ANDAYI W. F.
JUDGE
In the presence of:
Kamau for Petitioner/Respondent in the Preliminary Objection.
Kihara (Ms) for the 1st Respondent/Applicant in the Preliminary Objection
N/A for 2nd Respondent/2nd Applicant in the Preliminary Objection.
Johnson: Court Assistant.
ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT KWALE
CONSTITUTIONAL PETITION NO. E006 OF 2024
(Coram: Andayi W. F., J.)
IN THE MATTER OF: ARTICLES 3, 10, 19, 20, 22, 23(1) & (3), 24, 27, 46, 48, 159(1), 160(1), 165(3)(b), 258(1(, 259 OF THE CONSTITUTION OF KENYA,
AND
IN THE MATTER OF VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL FREEDOMS, PRACTICE AND PROCEDURE RULES)
AND
IN THE MATTER OF THE ENERGY ACT (CAP 314) AND CONSUMER PROTECTION ACT (CAP. 501) LAWS OF KENYA.
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 2, 3, 10(1), 27, 46, 47, 48, 159(1) & (2) AND 258(1) OF THE CONSTITUTION OF KENYA
BETWEEN
BACKDOORS LIMITED………………………………………………PETITIONER
AND
KENYA POWER AND LIGHTING COMPANY LIMITED……..1ST RESPONDENT
ENERGY & PETROLEUM REGULATORY AUTHORITY…….2ND RESPONDENT
RULING
1. The petitioner filed a constitutional reference dated 15/8/2024 seeking various reliefs against the respondents being declarations of unconstitutionality by the respondents and/or delay to address the petitioner’s complaint over an electricity bill for electric power consumed at the petitioner’s premises, breach of the constitution and abdications of duty by the respondents to respect and uphold the constitution, an order of mandamus against the 2nd respondent to act on the complaint, an award of compensation to the petitioner for loss incurred and an award of damages for breach of the petitioner’s constitutional rights.
2. The petitioner’s complaint arises from a dispute over an electricity bill issued on 6/11/2023 by the 1st respondent to the petitioner in the sum of KShs 262,954/= which the petitioner terms as erroneous and reconnection fee of KShs 13,920/= dated 14/12/2023 which the petitioner terms as unjustified over the petitioner’s electricity metre number 143931230. It is the petitioner’s contention that it has raised these complaints with the 2nd respondent but it has failed to act upon them under the provisions of the Energy Act (Cap. 314) Laws of Kenya.
3. It thus contends that its rights inter alia to goods and services of reasonable quality and the right to information necessary for it to benefit from the goods and services as a consumer of the 1st respondent’s services being electricity supply have been violated.
4. It contends further that its constitutional right to be seen as equal before the law, equal benefit of the law, right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair has been breached as the 2nd respondent has failed to act on the petitioner’s complaint lodged with it within 60 days as provided for under the Energy Act and further that the respondents have failed to provide it with written reasons for the failure to act.
5. The petitioner has cited various constitutional provisions and statutory provisions it alleges the respondents are in violation.
6. Upon being served, each of the respondents filed a separate preliminary objection to the petition contending that this court lacks jurisdiction to entertain the petition as filed.
7. The preliminary objection by the 1st respondent dated 19/12/2024 and by the 2nd respondent dated 10/12/2024 bear common grounds that the petition and the application by the petitioner offend the following provisions of the law:
1. Sections 3(1), 10, 11(e), (f), (i), (k) & (l), 23, 24, 25, 36(1) & (2), 40, 42, 159(3), 160(3) and 224(2)(e) of the Energy Act (Cap. 314) Laws of Kenya together with;
2. Sections 2, 4, 7 and 9 of the Energy (Complaints and Dispute Resolution) Regulations 2012 as read together with;
3. Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010 and
4. Sections 9(2) and 3 Fair Administrative Action Act, 2015.
8. The 2nd respondent contends further that the suit transgresses the doctrine of exhaustion of remedies as the Applicant has approached the wrong forum for the grievances set out therein while disdaining the o provisions under Article 159(2) of the Constitution of Kenya, together with the provisions under the Energy Act No. 1 of 2019.
9. The preliminary objections were disposed of by way of written submissions filed by all the parties to the petition.
10. Learned counsel for the 1st respondent submits that from a reading of the matters pleaded and the prayers sought by the petitioner, the issue in the petition is a dispute on disconnection and reconnection of electricity and however cunningly the petition is couched, the same is a complaint as envisaged under the cited laws and should be dealt with under the Energy & Petroleum Regulatory Authority and the Energy & Petroleum Tribunal; as the limitation of jurisdiction of this Court is expressly barred by the provisions of the Energy Act.
11. Learned counsel submits that section 5 of the Civil Procedure Act limits the court’s exercise of its jurisdiction except where it is either express or implied barred as follows:
“Any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred.”
12. Learned counsel has cited various authorities to back up the submissions that where other bodies have been given jurisdiction by the law to handle disputes then superior courts should in the first instance defer to them to deal with the dispute. Among the cases is where the Supreme Court in Albert Chaurembo Mumbo & 7 others v. Maurice Munyao & 148 others; SC Petition No 3 of 2016, [2019] eKLR held that:
“[118] In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the disputes as provided for in the relevant parent statute.”
13. Learned counsel submits further that the jurisdiction in this matter is with the Energy & Petroleum Regulatory Authority and Energy & Petroleum Tribunal as has been expressly set out in the Energy Act, and therefore this court lacks jurisdiction to hear and determine the petition. It should thus be struck out with costs to the 1st Respondent. He has cited the case of Republic v. Magistrate Court, Mombasa; Absin Synergy Limited (Interested Party) Judicial Review E033 of 2021) [2022] KEHC 10 (KLR) where the Court stated that:
“It is important to point out that jurisdiction is determined on the basis of pleadings and not the substantive merits of the case.”
14. Learned counsel has emphasized that due to lack of jurisdiction, this court cannot even transfer the suit to the proper forum for resolution and the parties cannot even by consent purport to do so as was held in the case of Equity Bank Limited v. Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR.
15. Learned counsel submits that the issue of jurisdiction has been raised at the earliest opportunity by the 1st respondent and the same should be disposed of first.
16. Learned counsel for the 2nd respondent submits in support of the preliminary objection that in view of the matters pleaded by the petitioner together with the prayers sought in the petition, that the petitioner’s case is on the issue of disconnection/reconnection of electrical energy, supplied by the 1st respondent to the petitioner. Consequently, the claim pertains to issues that are expressly regulated matters that fall under the Energy Act which provides for the mode of resolution of disputes arising under the Act and vests the Energy and Petroleum Regulatory Authority, the 2nd respondent and the Energy and Petroleum Tribunal with the mandate to resolve.
17. Learned counsel submits that in filing the petition herein, the petitioner has disregarded critical provisions of the law which provide for the mandate and functions of the 2nd respondent, establish the framework for dispute resolution, and set out the mechanisms for appeals available to aggrieved parties. That these provisions require that before filing suit, the dispute resolution mechanisms under the Energy Act must be pursued and exhausted but the appellant is disinclined to do so in spite of having initiated the dispute resolution mechanism provided for under the Act by reporting his complaint to the 2nd respondent. In support of these submissions, learned counsel cites the case of Patrick Musimba v National Commission & 4 Others (2016) eKLR the Court held that: -
“Where there is procedure for redress (for violations of Constitutional rights and freedoms) available elsewhere, that redress must be pursued within the rubric provided. This Court must exercise restraint and first give an opportunity to the relevant bodies or State Organs to deal with the dispute as provided in the relevant statute.”
18. Learned counsel for the petitioner submits that the petition raises issues on infringement of the petitioner’s constitutional rights. He has cited the case of Wekesa v Kenya Power & Lighting Company Limited & another [2022] KEHC 12769 (KLR) where the High Court considering a preliminary objection similar to the one in the present case held that the question whether there has been a violation, threat to violation of a right or denial of a fundamental freedom is the mandate of the High Court under Article 165 of the constitution and that it was not within the mandate of any of the other mechanisms to determine whether the rights of the petitioner had been infringed or his freedoms denied.
19. I have considered the petition filed herein, the grounds and the affidavit in support thereof, the common preliminary objection points raised thereto by the respondents respectively and the submissions by learned counsels for the parties.
20. It is the petitioner’s case as pleaded in the petition that there is a dispute between itself and the service provider, KPLC, the 1st respondent herein over disconnection of electricity to the petitioner’s premises due to a disputed bill for consumption of the electricity.
21. Where such a dispute exists, the law provides and I do find here that the petitioner is aware that it should be referred for resolution to the Energy and Regulatory Authority as provided for under section 160(3)(a) of the Energy Act which provides that if any dispute arises as to any charges it shall be referred to the Authority.
22. Section 159(3) and (4) also makes provision for dispute resolution as follows:
“(3) If any dispute arises under this section as to recalculation of electrical energy consumed by consumer or as to interference with any meter, such dispute shall be referred to the Authority for determination. (emphasis in Italics and underline mine).
(4) Where any dispute referred to in subsection (3) has been referred to the Authority the licensee shall not exercise any of the powers conferred by this section until final determination of the dispute:
…”
23. The submission by learned counsels for the respondents that there is a clear dispute resolution mechanism for such dispute under the Energy Act and the same should be followed is correct.
24. In spite of the respondents’ stance in this matter, the 2nd respondent has not indicated whether or not it acknowledges the existence of such a dispute. It is the petitioner’s contention that the 2nd respondent has never replied to its complaint. Had they acknowledged the existence of the dispute even by responding to the petitioner’s complaint then their contention would have borne some weight even if not to address the issue of jurisdiction raised herein.
25. All the same, it is the petitioner’s contention that it indeed referred its complaint to the 2nd respondent through e-mail on 30/12/2023 and on 12/1/2024 through a formal complaint by letter through its advocates. The Energy and Petroleum Regulatory Authority has however not responded to this issue and that is why it has come to court to compel the Authority the 2nd respondent to take up the issue for resolution. That is clearly what is contained in the prayers sought by the petitioner. The petitioner is not asking that this court resolves the dispute, rather that by failing to respond to the issue, the respondents are in breach of its rights under the constitution. The prayers in the petition are quite clear that the petitioner wants the 2nd respondent to take up the issue for resolution expeditiously. They are as follows:
i. A declaration that the Respondents’ delay in addressing the disputed electricity bill (Ref. No. 231110020887063) issued on 6th November 2023 and the reconnection fee bill dated 14th December 2023 violates Articles 27, 46, and 47 of the Constitution, rendering the inaction unconstitutional, null, and void.
ii. A declaration that the Respondents’ actions contravened Articles 10, 27, 46, 47, and 48 of the Constitution.
iii. A declaration that the Respondents abdicated their constitutional duties under Article 47(1) and (2).
iv. An order of Mandamus compelling the 2nd Respondent to complete investigations and issue a decision concerning the disputed electricity bill for meter no. 143931230.
v. Compensation of Ksh. 1,176,000 for direct losses incurred due to electricity disruption at Backdoor Villas.
vi. Damages for breach of the Petitioner’s constitutional rights and freedoms.
26. Learned counsel for the 2nd respondent submits that the petitioner, having initiated the dispute resolution mechanism under the Energy Act it ought to further the same in terms of section 23(5) of the Act which provides that:
“where the Authority does not make a decision as provided in subsection (1) (within 60 days after receipt of the complaint), the appellant may appeal to the Tribunal within seven days of the expiry of the prescribed period”
27. Learned counsel submits that from the foregoing provision, the petitioner ought to have lodged this matter as an appeal before the Energy and Petroleum Tribunal within 7 days after the expiry of 60 days since the lodging of the complaint before the Energy and Petroleum Regulatory Authority.
28. I do not find think that section is applicable to the present issue. There are many different types of matters including complaints handled by the Authority under the Energy Act and some have their procedures of handling provided for in the Act. The issues herein would properly fall under sections 159 and 160 of the Act under which I believe the proper complaints handling procedure is provided for under the Energy (Complaints and Dispute Resolution) Regulations, 2012.
29. Even then, the issue is not whether or not any of the provisions of the Energy Act are in conflict with the constitution as submitted by learned counsel for the 2nd respondent. That the petitioner should make an appeal to the Tribunal even where the Authority has not acknowledged that it has taken up the petitioner’s dispute is in itself defeatist.
30. The constitutional petition filed herein is not to call upon this court to resolve the dispute between the petitioner and the 1st respondent. It is clear from the prayers sought that it is to determine whether the respondents’ actions or inactions towards the petitioner are in breach of its constitutional rights. I agree with and I am persuaded to follow the decision of the High Court in Wekesa v Kenya Power & Lighting Company Limited & another [2022] KEHC 12769 (KLR) that whether there has been a violation, threat to violation of a right or denial of a fundamental freedom is the mandate of the High Court under Article 165 of the constitution and not any of other mechanisms provided for under the Energy Act to determine whether the rights of the Petitioner have been infringed or his freedoms denied.
31. For the said reason, I find that the preliminary objections filed herein by both respondents are not well founded and the same are dismissed.
32. Costs shall abide by the outcome of the petition.
ANDAYI W. F.
JUDGE
In the presence of:
Kamau for Petitioner/Respondent in the Preliminary Objection.
Kihara (Ms) for the 1st Respondent/Applicant in the Preliminary Objection
N/A for 2nd Respondent/2nd Applicant in the Preliminary Objection.
Johnson: Court Assistant.
ANDAYI W. F.
JUDGE