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……..1 ST RESPONDENT
ENERGY & PETROLEUM REGULATORY AUTHORITY…….2 ND RESPONDENT
JUDGMENT
The petition
1. The petitioner filed a constitutional reference dated 15th August 2024 seeking various reliefs against the respondents as follows:
a. A declaration that the dilly dally by both respondents in considering and resolving the dispute challenging the contested electricity bill reference No. 2311100020887063 issued on 6 th November 2023 and reconnection fee bill dated 14 th December 2023 by the 1 st respondent concerning metre No. 143931230 flies in the face of Article 27, 46 and 47 of the Constitution of Kenya hence the said inaction is unconstitutional.
b. A declaration that the above actions contravene Articles 10, 27, 46, 47 and 48 of the Constitution of Kenya.
c. A declaration that the respondents have abdicated their duties to respect and uphold the Constitution of Kenya in the administrative actions contrary to article 47(1) and (2) of the Constitution of Kenya.
d. An order of mandamus to compel the 2 nd respondent to complete investigations and issue a decision in the dispute relating to electricity bills of account No. 143931230.
e. The petitioner be awarded compensation of KShs 1,176,000/= emanating from the direct loss incurred as a result of disruption of electricity supply to Backdoor Villas.
f. The petitioner be awarded damages for gross breach of its rights and freedoms by the respondents.
2. The petitioner’s complaint arises from a dispute over an electricity bill issued by the 1 st respondent to the petitioner on 6 th November 2023 in the for 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 a complaint with the 1 st respondent who has failed to address it and also referred it to the 2 nd respondent who on its part had failed to address the issue as a dispute under the provisions of the Energy Act (Cap. 314) Laws of Kenya.
3. The petitioner points out that the two respondents are public body corporates. The 1 st respondent Kenya Power and Lighting Company Ltd (KPLC) is mandated to transmit, distribute and retail electricity throughout the Republic of Kenya while the 2 nd respondent, the Energy and Petroleum Regulatory Authority is established under the Energy Act (Cap. 314) Laws of Kenya with the mandate to inter alia set, review and adjust electric power and tariff structures and investigate tariff charges, whether or not a specific application has been made for a tariff adjustment.
4. The petitioner’s contention is 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 1 st respondent’s services being electricity supply have been violated by the respondents.
5. 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 2 nd 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.
6. The petitioner pleads breach of the following constitutional rights under the Constitution of Kenya by the respondents:
a. Article 10(2)(c) failure by the respondents to observe principles of good governance, integrity, transparency and accountability in the exercise of their functions.
b. Article 27(1) the petitioner’s right in common with others to be seen as equal before the law and the right to equal protection and equal benefit of the law.
c. Article 46(1)(a) and (b) the petitioner’s right in common with others to goods and services of reasonable quality and the right for the information necessary for them to gain full benefit from goods and services.
d. Article 47(1) the petitioner’s right in common with others to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
e. Article 47(2) the petitioner’s right in common with others to be given written reasons for action where her right or fundamental freedom has been or is likely to be adversely affected.
f. Article 48 the petitioner’s right in common with others to access to justice.
7. The petitioner pleads that it intends to challenge the erroneous electricity bill reference No. 2311100020887063 of KShs 262,954/= issued on 6 th November 2023 as well as reconnection fee bill dated 14 th December 2023 by the 1 st respondent concerning metre No. 143931230 in the sum of KShs 13,920/=. It has raised these complains with both respondents but they have failed to act upon them contrary to their respective statutory mandates under the Energy Act.
8. That as a result of the said bills, electricity connection to the petitioner’s premises was disconnected on 12 th January 2024 thereby causing the premises to be closed to customers and to cancellation of bookings resulting to financial loss to the petitioner, the effect of which the petitioner suffered loss of income resulting in the need for shareholders to lend additional funds to the petitioner and also lead to job cuts and dismissal of employees at the villa.
9. The petition is supported by the affidavit sworn on 15 th August 2024 and further affidavit sworn on 25 th September 2025 by David Mares, a director of the petitioner which expounds on the grounds in support of the application and responds to the respondents’ reply to the petition.
10. It is the petitioner’s case as pleaded in the petition that there is a dispute between itself and the service provider, KPLC, the 1 st respondent herein over disconnection of electricity to the petitioner’s premises due to a disputed bill for consumption of the electricity. A significant part of the petition lays out the dispute but this petition is not the forum to consider the same. Where such a dispute exists, the law provides and I do find here that the petitioner is aware as is pleaded in the petition 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.
11. The petitioner’s plea in the present petition is that through its said director it lodged a complaint with the 2 nd respondent at its official website on 30 th December 2023 and was issued with reference No. REF439325 and was advised that they will know of the progress of the complaint. A follow up complaint by way of a letter dated 12 th January 2024 was issued to the 2 nd respondent by the petitioner’s advocates. On the same day the petitioner’s electricity supply was cut off by the 2 nd respondent. According to the petitioner, that action was actuated by malice and as a result, the petitioner’s business and reputation suffered tremendously as there were guests in the villa and others had made online reservations. For that reason, the petitioner faced losses and negative reviews leading to loss of income and eventual dismissal of some employees.
12. The 1 st respondent had through acts of disconnecting electricity supply to the villa arm-twisted the petitioner into making substantial payments for power bills which it had disputed owing.
The Responses
13. Each of the respondents filed a replying affidavit in opposition to the petition.
14. The 1 st respondent’s replying affidavit is sworn on 8 th August 2025 by Joseph Muchai, legal counsel of the 1 st respondent.
15. The 2 nd respondent’s replying affidavit is sworn on 15 th July 2025 by Daniel Kiptoo Bargoria, the Director General of the 2 nd respondent.
16. A large part of the responses was dedicated to disputing this court’s jurisdiction to handle the matter as a petition. This issue was considered and disposed of by this court on 9 th May 2025 with the court finding that the petition herein was different from the dispute envisaged under the Energy Act and this court had jurisdiction to hear and determine the petition while the Energy and Regulatory Authority will hear and determine the dispute with an appeal to the Energy Tribunal as provided for under the Act.
17. On the petition, both respondents content that there is no constitutional issue raised by the petitioner as the rights allegedly breached by the respondents have not been specified as set out in the case of Anarita Karimi Njeru v Republic.
18. The 1 st respondent deposes that it encountered challenges in delivering the required four metres for measuring the electrical energy consumed at the petitioner’s premises. It only managed to deliver two. That it was embroiled in various cases in court over the procurement of electrical energy measurement metres where injunctions had been issued against it.
19. The 1 st respondent therefore deposes that the petitioner’s rights have not been violated as alleged.
20. The 2 nd respondent acknowledges that the petitioner filed a complaint with it with respect with aa dispute between it and the petitioner which it received on 30 th December 2023. It immediately forwarded the complaint to the 1 st respondent and made several reminders but no response was forthcoming from the 1 st respondent. For that reason, the 2 nd respondent was unable to determine the complaint within the 60 days provided by statute.
21. It is the 2 nd respondent’s position that it has not expressly refused to act on the complaint and therefore an order of mandamus cannot issue against it. It denies that it has violated the petitioner’s rights and therefore the petitioner is not entitled to damages as claimed. Further that the petitioner has not sufficiently proved the loss of the KShs 1,176,000/= claimed as special damages.
22. It further deposes that the petitioner has simply cited the provisions of the constitution without demonstrating infringement of the same.
23. The 2 nd respondent deposes that it is able, ready and willing to handle and resolve the complaint raised by the petitioner and prays that the court refers the matter back to it for resolution.
Submissions
24. Directions were had on the hearing and disposal of the petition that the same will be by way of submissions. Learned counsels for all the parties filed their respective submissions on the petition. The same are considered in the analysis below.
25. The petitioner raised the following issues for the court’s determination:
a. Whether the inaction by the respondents in handling the billing complaint contravened Articles 10, 27, 46, 47 and 48 of the constitution.
b. Whether the court can issue an order of mandamus to compel the 2 nd respondent to complete handling the dispute between the petitioner and the 1 st respondent.
c. Whether the petitioner is entitled to compensation of KShs 1,176,000/= as a direct loss incurred as a result of disruption of electricity supply at its premises. Backdoors Villa.
d. Whether the petitioner is entitled to general damages for breach of the petitioner’s rights and fundamental freedoms.
e. Who bears the costs of the petition?
26. The 1 st respondent raised the following issues for determination:
a. Does this petition offend the doctrine of constitutional avoidance?
b. Whether the 1 st respondent violated the petitioner’s rights as alleged?
c. Whether the petitioner is entitled to damages?
d. Whether the Petitioner is entitled to costs ?
27. The 2 nd respondent raised the following issues for determination:
a. Whether the petitioner exhausted the statutory conflict resolution forums available before approaching this court through the petition.
b. Whether the 2 nd respondent refused and/or delayed in addressing the petitioner’s complaint.
c. Whether the petition meets the threshold for a constitutional petition and whether the 2 nd respondent infringed upon the petitioner’s constitutional rights.
d. Whether the prayers sought are legally tenable and whether the petitioner is entitled to the same.
e. Whether the petition is merited.
Analysis and Determination
28. I have considered the petition filed herein, the grounds and the affidavits in support thereof, the common preliminary objection points raised thereto by the respondents respectively and the submissions by learned counsels for the parties. Arising from the issues for determination set forth by the parties, the same can be summed up by this court to be:
a. Whether the petition herein offends the doctrine of exhaustion of remedies.
b. Whether the petition meets the threshold for a constitutional petition.
c. Whether the petitioner’s rights have been infringed.
d. Whether the petitioner is entitled to the remedies sought.
e. Who bears the costs of the petition?
29. The respondents herein are public entities. The 1 st respondent is a company under the Ministry of Energy & Petroleum and a service provider inter alia transmission, distribution and retail supply of electricity to consumers in Kenya. In that respect it is a licensee as defined under section 2 of the Energy Act. The 2 nd respondent is a state corporation established under the Energy Act with the mandate to regulate inter alia electric power of which the 1 st respondent is a licensee. It is also mandated to investigate and determine complaints or disputes relating to licences and licence conditions under the Act.
The doctrine of exhaustion of remedies
30. It is the petitioner’s contention that its power was unjustifiably disconnected by the 1 st respondent for a period of 21 days due to an alleged outstanding bill which the petitioner strongly contested. Despite the contestation, the 1 st respondent remained adamant that the petitioner had to clear its alleged outstanding bill first before reconnection could be had. The petitioner had to and did clear the bill in order to avert losses of its business. In spite of settling the bill, the 1 st respondent never addressed the petitioner’s complaint.
31. The petitioner therefore referred its complaint to the 2 nd respondent through e-mail on 30 th December 2023 and followed it up on 12 th January 2024 through a formal complaint by letter through its advocates. The 2 nd respondent, 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 2 nd respondent, to take up the issue for resolution.
32. The respondents on their respective parts maintain that the petitioner has not exhausted the remedies set out under the Energy Act for resolution of disputes and therefore this petition is not properly before this court. It is the respondents’ position that the petitioner ought to proceed under the provisions of sections 10, 11, 23, 158, and 160 of the Energy Act , together with the Energy (Complaints and Deputes Resolution) Regulations , 2012 as read with section 9(2) and (3) of the Fair Administrative Actions Act 2015.
33. Section 10 of the Act deals with the functions of the Energy and Petroleum Authority (EPRA) among them to protect consumer, investor and other stakeholder interests; while section 11 of the Act deals with the powers of the Authority among them being to investigate and determine complaints or disputes between parties over any matter relating to licences and licence conditions under this Act and to issue orders or directions to ensure compliance with the Act.
34. Section 158 of the Act provides that:
(1) the licensee shall not connect or disconnect any meter to be used for ascertaining the quantity of electrical energy supplied, or a consumer's check meter, unless the licensee has obtained the written consent of that person, or alternatively unless the licensee has given to that person not less than forty-eight hours' written notice of intention to do so.
(2) ...
35. Section 160 of the Act as is relevant provides that:
(1) A licensee shall not, except for reasons beyond the licensee's control, reduce, discontinue or refuse the supply of electrical energy to any consumer, unless—
(a) the consumer has failed to pay charges for consumption of electrical energy or instalments relating to deferred connection costs, whether such charges are due to the licensee for the supply of electrical energy to premises in respect of which such supply is demanded or in respect of other premises:
Provided that such charges have not been referred to the licensee by the consumer for resolution in accordance with the licensee's complaint handling and dispute resolution procedures approved by the Authority.
...
(2) Where a person has given a licensee a deposit as security for payment for the supply of electrical energy, the licensee may, at any time, while any such charge or other sum remains unpaid and after giving that person not less than fourteen days' notice in writing—
(a) discontinue the supply of electrical energy to such person; or
(b) apply the deposit for the electrical energy consumed and if any part of such charge or other sum remains unpaid thereafter, discontinue the supply of electrical energy to such person, until such charge or other sum together with any expenses incurred in disconnecting such supply and any lawful charges for or incidental to the reconnection thereof have been paid.
(3) If any dispute arises as to—
(a) any charges;
(b) ...
(e) ... it shall be referred to the Authority.”
36. The respondents have cited various authorities to support their assertion that where an alternative dispute resolution mechanism exists, the mechanism ought to be exhausted before the matter is filed in court. Among the various decisions cited is the one that extensively deals with the doctrine of exhaustion of remedies, that is Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) where the court stated that:
“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
37. This court handled the issue of whether or not this court had the jurisdiction to handle the issues raised herein as a constitutional petition when a preliminary objection was raised to the petition by the respondents. A decision thereon was rendered on 9 th May 2026 with the finding that thus court had the requisite jurisdiction. I need not rehash the reasons offered for the said decision here. Suffice it to reiterate that from the prayers sought by the petitioner it is not asking that this court resolves the dispute with the 1 st respondent, rather that, by failing to respond to the complaint, whether the respondents are in breach of its rights under the constitution. The prayers in the petition are quite clear that the petitioner wants the 2 nd respondent to take up the issue for resolution expeditiously.
38. In the said ruling, this court observed that in spite of the respondents’ stance in this matter that this was not the forum for resolution of the dispute between the petitioner and the 1 st respondent, the 2 nd respondent had not indicated whether or not it acknowledged the existence of the dispute between the petitioner and the 1 st respondent as it was the petitioner’s contention that the 2 nd respondent had never replied to its complaint. The court further observed that had they acknowledged the existence of the dispute by responding to the petitioner’s complaint then their contention would have carried some weight.
39. I have now seen in the 2 nd respondent’s replying affidavit an acknowledgment that the 2 nd respondent received the complaint from the petitioner on 30 th December 2023 and that it immediately forwarded the complaint to the 1 st respondent with reminders but no response was forthcoming from the 1 st respondent.
40. This court reiterates that it never stopped the 2 nd respondent from proceeding as provided for under the law to resolve the dispute herein between the petitioner and the 1 st respondent. In fact, in what would be mitigation of the petition, the 2 nd petitioner should by now have approached this court and informed it of the steps it has taken to resolve the dispute as provided for under the law. It has only alleged that it is able, willing and ready to do so without showing any tangible step taken to do so.
41. Therefore, the doctrine of exhaustion of remedies is inapplicable in this case.
Threshold for a Constitutional Petition
42. The threshold for a constitutional petition was set out in the case of Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR) where the Court held that:-
“... if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
43. This position was reiterated by the Supreme Court in in the case of Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) the Court stated that:
“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”
44. The respondents aver that, other than citing constitution provisions, the petitioner has not supported them with any breaches of the constitution by the respondents.
45. However, I do not agree with that submission. The petitioner has set out the factual background to the petition, pointing out that its main issues with the petitioners is their respective failures to address its complaint under the mechanisms laid out under the Act. It has proceeded to state the constitutional provisions allegedly breached and the remedies sought against the respondents.
46. The court while considering the elements of a sustainable Constitutional Petition in Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] KEELC 4674 (KLR) stated that:-
“It is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complaints.”
47. The court in the above case went ahead to decry the practice of parties increasingly filing matters that are essentially civil and christening them as constitutional petitions which is not proper. The court advised that where there is the alternative remedy of filing a suit in the ordinary Civil Courts, a party ought not to invoke the jurisdiction of the constitutional court. That issue arose in the present case and I have addressed it above.
Whether the petitioner’s rights have been infringed.
48. Rule 4(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013 (the Mutunga Rules) provides as follows:-
“Where any right or fundamental freedom provided for in the constitution is allegedly denied, violated, or infringed, or threatened a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.”
49. The petitioner has alleged that the Respondents infringed on his constitutional rights. He has alleged violation of his Right to Protection under articles 10, 27, 46, 47 and 48 of the constitution.
50. Learned counsels for the respondents submit that the petitioner has not specifically identified the rights that have been infringed. However, I am satisfied from the pleadings that the petitioner has identified the specific constitutional violations it alleges against the respondents. I am therefore satisfied that this petition has met the legal threshold for a constitutional petition.
51. The Petitioner contends that it lawfully applied for and paid for electricity supply to its premises which the 1 st respondent did supply but afterwards arbitrarily disconnected due to a dispute over the billing of the same. These allegations are not disputed by the 1 st respondent.
52. Section 158 of the Energy Act provides for disconnection of metres as follows:
158. Procedure before connection, disconnection or adjustment of meters
(1) The licensee shall not connect or disconnect any meter to be used for ascertaining the quantity of electrical energy supplied, or a consumer's check meter, unless the licensee has obtained the written consent of that person, or alternatively unless the licensee has given to that person not less than forty-eight hours' written notice of intention to do so.
53. Further section 160 of the Act provides for the circumstances when electrical energy may be refused or disconnected. Section 160(2) provides that:
160 (2) Where a person has given a licensee a deposit as security for payment for the supply of electrical energy, the licensee may, at any time, while any such charge or other sum remains unpaid and after giving that person not less than fourteen days' notice in writing—
(a) discontinue the supply of electrical energy to such person; or
(b) apply the deposit for the electrical energy consumed and if any part of such charge or other sum remains unpaid thereafter, discontinue the supply of electrical energy to such person, until such charge or other sum together with any expenses incurred in disconnecting such supply and any lawful charges for or incidental to the reconnection thereof have been paid.
54. Section 160(3) then provides that any dispute arising from such disconnection shall be referred to the Authority. Therefore, 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. However, as stated above the issue was not how the dispute was to be resolved but whether or not the respondents were in fact resolving the dispute when the petitioner approached the court and therefore whether the petitioner’s case before this court is warranted.
55. Article 10 of the Constitution of Kenya provides for the national values and principles of governance that the same bind all persons whenever the person, with reference to this particular petition, applies any law. There are several values and principles listed under the article. However, the petitioner has not identified which of the values and principles has been violated by each of the respondents and how.
56. Article 27 of the Constitution of Kenya 2010 provides
“Every person is equal before the law and has the right to equal protection and equal benefit of the law.”
57. The petitioner claimed that the arbitrary actions of the respondents in failing to act upon its complaint violated its rights under this provision of the Constitution . There is no doubt that the petitioner enjoys equal protection of the law like all other persons. Therefore, where either of the respondents failed to apply the law as provided, with respect to the petitioner, then it would have violated the petitioner’s right to equal protection of the law.
58. Article 46 of the Constitution provides for Consumer Rights as follows:
46. Consumer rights
(1) Consumers have the right—
(a) to goods and services of reasonable quality;
[...truncated]
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……..1 ST RESPONDENT
ENERGY & PETROLEUM REGULATORY AUTHORITY…….2 ND RESPONDENT
JUDGMENT
The petition
1. The petitioner filed a constitutional reference dated 15th August 2024 seeking various reliefs against the respondents as follows:
a. A declaration that the dilly dally by both respondents in considering and resolving the dispute challenging the contested electricity bill reference No. 2311100020887063 issued on 6 th November 2023 and reconnection fee bill dated 14 th December 2023 by the 1 st respondent concerning metre No. 143931230 flies in the face of Article 27, 46 and 47 of the Constitution of Kenya hence the said inaction is unconstitutional.
b. A declaration that the above actions contravene Articles 10, 27, 46, 47 and 48 of the Constitution of Kenya.
c. A declaration that the respondents have abdicated their duties to respect and uphold the Constitution of Kenya in the administrative actions contrary to article 47(1) and (2) of the Constitution of Kenya.
d. An order of mandamus to compel the 2 nd respondent to complete investigations and issue a decision in the dispute relating to electricity bills of account No. 143931230.
e. The petitioner be awarded compensation of KShs 1,176,000/= emanating from the direct loss incurred as a result of disruption of electricity supply to Backdoor Villas.
f. The petitioner be awarded damages for gross breach of its rights and freedoms by the respondents.
2. The petitioner’s complaint arises from a dispute over an electricity bill issued by the 1 st respondent to the petitioner on 6 th November 2023 in the for 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 a complaint with the 1 st respondent who has failed to address it and also referred it to the 2 nd respondent who on its part had failed to address the issue as a dispute under the provisions of the Energy Act (Cap. 314) Laws of Kenya.
3. The petitioner points out that the two respondents are public body corporates. The 1 st respondent Kenya Power and Lighting Company Ltd (KPLC) is mandated to transmit, distribute and retail electricity throughout the Republic of Kenya while the 2 nd respondent, the Energy and Petroleum Regulatory Authority is established under the Energy Act (Cap. 314) Laws of Kenya with the mandate to inter alia set, review and adjust electric power and tariff structures and investigate tariff charges, whether or not a specific application has been made for a tariff adjustment.
4. The petitioner’s contention is 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 1 st respondent’s services being electricity supply have been violated by the respondents.
5. 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 2 nd 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.
6. The petitioner pleads breach of the following constitutional rights under the Constitution of Kenya by the respondents:
a. Article 10(2)(c) failure by the respondents to observe principles of good governance, integrity, transparency and accountability in the exercise of their functions.
b. Article 27(1) the petitioner’s right in common with others to be seen as equal before the law and the right to equal protection and equal benefit of the law.
c. Article 46(1)(a) and (b) the petitioner’s right in common with others to goods and services of reasonable quality and the right for the information necessary for them to gain full benefit from goods and services.
d. Article 47(1) the petitioner’s right in common with others to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
e. Article 47(2) the petitioner’s right in common with others to be given written reasons for action where her right or fundamental freedom has been or is likely to be adversely affected.
f. Article 48 the petitioner’s right in common with others to access to justice.
7. The petitioner pleads that it intends to challenge the erroneous electricity bill reference No. 2311100020887063 of KShs 262,954/= issued on 6 th November 2023 as well as reconnection fee bill dated 14 th December 2023 by the 1 st respondent concerning metre No. 143931230 in the sum of KShs 13,920/=. It has raised these complains with both respondents but they have failed to act upon them contrary to their respective statutory mandates under the Energy Act.
8. That as a result of the said bills, electricity connection to the petitioner’s premises was disconnected on 12 th January 2024 thereby causing the premises to be closed to customers and to cancellation of bookings resulting to financial loss to the petitioner, the effect of which the petitioner suffered loss of income resulting in the need for shareholders to lend additional funds to the petitioner and also lead to job cuts and dismissal of employees at the villa.
9. The petition is supported by the affidavit sworn on 15 th August 2024 and further affidavit sworn on 25 th September 2025 by David Mares, a director of the petitioner which expounds on the grounds in support of the application and responds to the respondents’ reply to the petition.
10. It is the petitioner’s case as pleaded in the petition that there is a dispute between itself and the service provider, KPLC, the 1 st respondent herein over disconnection of electricity to the petitioner’s premises due to a disputed bill for consumption of the electricity. A significant part of the petition lays out the dispute but this petition is not the forum to consider the same. Where such a dispute exists, the law provides and I do find here that the petitioner is aware as is pleaded in the petition 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.
11. The petitioner’s plea in the present petition is that through its said director it lodged a complaint with the 2 nd respondent at its official website on 30 th December 2023 and was issued with reference No. REF439325 and was advised that they will know of the progress of the complaint. A follow up complaint by way of a letter dated 12 th January 2024 was issued to the 2 nd respondent by the petitioner’s advocates. On the same day the petitioner’s electricity supply was cut off by the 2 nd respondent. According to the petitioner, that action was actuated by malice and as a result, the petitioner’s business and reputation suffered tremendously as there were guests in the villa and others had made online reservations. For that reason, the petitioner faced losses and negative reviews leading to loss of income and eventual dismissal of some employees.
12. The 1 st respondent had through acts of disconnecting electricity supply to the villa arm-twisted the petitioner into making substantial payments for power bills which it had disputed owing.
The Responses
13. Each of the respondents filed a replying affidavit in opposition to the petition.
14. The 1 st respondent’s replying affidavit is sworn on 8 th August 2025 by Joseph Muchai, legal counsel of the 1 st respondent.
15. The 2 nd respondent’s replying affidavit is sworn on 15 th July 2025 by Daniel Kiptoo Bargoria, the Director General of the 2 nd respondent.
16. A large part of the responses was dedicated to disputing this court’s jurisdiction to handle the matter as a petition. This issue was considered and disposed of by this court on 9 th May 2025 with the court finding that the petition herein was different from the dispute envisaged under the Energy Act and this court had jurisdiction to hear and determine the petition while the Energy and Regulatory Authority will hear and determine the dispute with an appeal to the Energy Tribunal as provided for under the Act.
17. On the petition, both respondents content that there is no constitutional issue raised by the petitioner as the rights allegedly breached by the respondents have not been specified as set out in the case of Anarita Karimi Njeru v Republic.
18. The 1 st respondent deposes that it encountered challenges in delivering the required four metres for measuring the electrical energy consumed at the petitioner’s premises. It only managed to deliver two. That it was embroiled in various cases in court over the procurement of electrical energy measurement metres where injunctions had been issued against it.
19. The 1 st respondent therefore deposes that the petitioner’s rights have not been violated as alleged.
20. The 2 nd respondent acknowledges that the petitioner filed a complaint with it with respect with aa dispute between it and the petitioner which it received on 30 th December 2023. It immediately forwarded the complaint to the 1 st respondent and made several reminders but no response was forthcoming from the 1 st respondent. For that reason, the 2 nd respondent was unable to determine the complaint within the 60 days provided by statute.
21. It is the 2 nd respondent’s position that it has not expressly refused to act on the complaint and therefore an order of mandamus cannot issue against it. It denies that it has violated the petitioner’s rights and therefore the petitioner is not entitled to damages as claimed. Further that the petitioner has not sufficiently proved the loss of the KShs 1,176,000/= claimed as special damages.
22. It further deposes that the petitioner has simply cited the provisions of the constitution without demonstrating infringement of the same.
23. The 2 nd respondent deposes that it is able, ready and willing to handle and resolve the complaint raised by the petitioner and prays that the court refers the matter back to it for resolution.
Submissions
24. Directions were had on the hearing and disposal of the petition that the same will be by way of submissions. Learned counsels for all the parties filed their respective submissions on the petition. The same are considered in the analysis below.
25. The petitioner raised the following issues for the court’s determination:
a. Whether the inaction by the respondents in handling the billing complaint contravened Articles 10, 27, 46, 47 and 48 of the constitution.
b. Whether the court can issue an order of mandamus to compel the 2 nd respondent to complete handling the dispute between the petitioner and the 1 st respondent.
c. Whether the petitioner is entitled to compensation of KShs 1,176,000/= as a direct loss incurred as a result of disruption of electricity supply at its premises. Backdoors Villa.
d. Whether the petitioner is entitled to general damages for breach of the petitioner’s rights and fundamental freedoms.
e. Who bears the costs of the petition?
26. The 1 st respondent raised the following issues for determination:
a. Does this petition offend the doctrine of constitutional avoidance?
b. Whether the 1 st respondent violated the petitioner’s rights as alleged?
c. Whether the petitioner is entitled to damages?
d. Whether the Petitioner is entitled to costs ?
27. The 2 nd respondent raised the following issues for determination:
a. Whether the petitioner exhausted the statutory conflict resolution forums available before approaching this court through the petition.
b. Whether the 2 nd respondent refused and/or delayed in addressing the petitioner’s complaint.
c. Whether the petition meets the threshold for a constitutional petition and whether the 2 nd respondent infringed upon the petitioner’s constitutional rights.
d. Whether the prayers sought are legally tenable and whether the petitioner is entitled to the same.
e. Whether the petition is merited.
Analysis and Determination
28. I have considered the petition filed herein, the grounds and the affidavits in support thereof, the common preliminary objection points raised thereto by the respondents respectively and the submissions by learned counsels for the parties. Arising from the issues for determination set forth by the parties, the same can be summed up by this court to be:
a. Whether the petition herein offends the doctrine of exhaustion of remedies.
b. Whether the petition meets the threshold for a constitutional petition.
c. Whether the petitioner’s rights have been infringed.
d. Whether the petitioner is entitled to the remedies sought.
e. Who bears the costs of the petition?
29. The respondents herein are public entities. The 1 st respondent is a company under the Ministry of Energy & Petroleum and a service provider inter alia transmission, distribution and retail supply of electricity to consumers in Kenya. In that respect it is a licensee as defined under section 2 of the Energy Act. The 2 nd respondent is a state corporation established under the Energy Act with the mandate to regulate inter alia electric power of which the 1 st respondent is a licensee. It is also mandated to investigate and determine complaints or disputes relating to licences and licence conditions under the Act.
The doctrine of exhaustion of remedies
30. It is the petitioner’s contention that its power was unjustifiably disconnected by the 1 st respondent for a period of 21 days due to an alleged outstanding bill which the petitioner strongly contested. Despite the contestation, the 1 st respondent remained adamant that the petitioner had to clear its alleged outstanding bill first before reconnection could be had. The petitioner had to and did clear the bill in order to avert losses of its business. In spite of settling the bill, the 1 st respondent never addressed the petitioner’s complaint.
31. The petitioner therefore referred its complaint to the 2 nd respondent through e-mail on 30 th December 2023 and followed it up on 12 th January 2024 through a formal complaint by letter through its advocates. The 2 nd respondent, 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 2 nd respondent, to take up the issue for resolution.
32. The respondents on their respective parts maintain that the petitioner has not exhausted the remedies set out under the Energy Act for resolution of disputes and therefore this petition is not properly before this court. It is the respondents’ position that the petitioner ought to proceed under the provisions of sections 10, 11, 23, 158, and 160 of the Energy Act , together with the Energy (Complaints and Deputes Resolution) Regulations , 2012 as read with section 9(2) and (3) of the Fair Administrative Actions Act 2015.
33. Section 10 of the Act deals with the functions of the Energy and Petroleum Authority (EPRA) among them to protect consumer, investor and other stakeholder interests; while section 11 of the Act deals with the powers of the Authority among them being to investigate and determine complaints or disputes between parties over any matter relating to licences and licence conditions under this Act and to issue orders or directions to ensure compliance with the Act.
34. Section 158 of the Act provides that:
(1) the licensee shall not connect or disconnect any meter to be used for ascertaining the quantity of electrical energy supplied, or a consumer's check meter, unless the licensee has obtained the written consent of that person, or alternatively unless the licensee has given to that person not less than forty-eight hours' written notice of intention to do so.
(2) ...
35. Section 160 of the Act as is relevant provides that:
(1) A licensee shall not, except for reasons beyond the licensee's control, reduce, discontinue or refuse the supply of electrical energy to any consumer, unless—
(a) the consumer has failed to pay charges for consumption of electrical energy or instalments relating to deferred connection costs, whether such charges are due to the licensee for the supply of electrical energy to premises in respect of which such supply is demanded or in respect of other premises:
Provided that such charges have not been referred to the licensee by the consumer for resolution in accordance with the licensee's complaint handling and dispute resolution procedures approved by the Authority.
...
(2) Where a person has given a licensee a deposit as security for payment for the supply of electrical energy, the licensee may, at any time, while any such charge or other sum remains unpaid and after giving that person not less than fourteen days' notice in writing—
(a) discontinue the supply of electrical energy to such person; or
(b) apply the deposit for the electrical energy consumed and if any part of such charge or other sum remains unpaid thereafter, discontinue the supply of electrical energy to such person, until such charge or other sum together with any expenses incurred in disconnecting such supply and any lawful charges for or incidental to the reconnection thereof have been paid.
(3) If any dispute arises as to—
(a) any charges;
(b) ...
(e) ... it shall be referred to the Authority.”
36. The respondents have cited various authorities to support their assertion that where an alternative dispute resolution mechanism exists, the mechanism ought to be exhausted before the matter is filed in court. Among the various decisions cited is the one that extensively deals with the doctrine of exhaustion of remedies, that is Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) where the court stated that:
“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
37. This court handled the issue of whether or not this court had the jurisdiction to handle the issues raised herein as a constitutional petition when a preliminary objection was raised to the petition by the respondents. A decision thereon was rendered on 9 th May 2026 with the finding that thus court had the requisite jurisdiction. I need not rehash the reasons offered for the said decision here. Suffice it to reiterate that from the prayers sought by the petitioner it is not asking that this court resolves the dispute with the 1 st respondent, rather that, by failing to respond to the complaint, whether the respondents are in breach of its rights under the constitution. The prayers in the petition are quite clear that the petitioner wants the 2 nd respondent to take up the issue for resolution expeditiously.
38. In the said ruling, this court observed that in spite of the respondents’ stance in this matter that this was not the forum for resolution of the dispute between the petitioner and the 1 st respondent, the 2 nd respondent had not indicated whether or not it acknowledged the existence of the dispute between the petitioner and the 1 st respondent as it was the petitioner’s contention that the 2 nd respondent had never replied to its complaint. The court further observed that had they acknowledged the existence of the dispute by responding to the petitioner’s complaint then their contention would have carried some weight.
39. I have now seen in the 2 nd respondent’s replying affidavit an acknowledgment that the 2 nd respondent received the complaint from the petitioner on 30 th December 2023 and that it immediately forwarded the complaint to the 1 st respondent with reminders but no response was forthcoming from the 1 st respondent.
40. This court reiterates that it never stopped the 2 nd respondent from proceeding as provided for under the law to resolve the dispute herein between the petitioner and the 1 st respondent. In fact, in what would be mitigation of the petition, the 2 nd petitioner should by now have approached this court and informed it of the steps it has taken to resolve the dispute as provided for under the law. It has only alleged that it is able, willing and ready to do so without showing any tangible step taken to do so.
41. Therefore, the doctrine of exhaustion of remedies is inapplicable in this case.
Threshold for a Constitutional Petition
42. The threshold for a constitutional petition was set out in the case of Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR) where the Court held that:-
“... if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
43. This position was reiterated by the Supreme Court in in the case of Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) the Court stated that:
“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”
44. The respondents aver that, other than citing constitution provisions, the petitioner has not supported them with any breaches of the constitution by the respondents.
45. However, I do not agree with that submission. The petitioner has set out the factual background to the petition, pointing out that its main issues with the petitioners is their respective failures to address its complaint under the mechanisms laid out under the Act. It has proceeded to state the constitutional provisions allegedly breached and the remedies sought against the respondents.
46. The court while considering the elements of a sustainable Constitutional Petition in Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] KEELC 4674 (KLR) stated that:-
“It is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complaints.”
47. The court in the above case went ahead to decry the practice of parties increasingly filing matters that are essentially civil and christening them as constitutional petitions which is not proper. The court advised that where there is the alternative remedy of filing a suit in the ordinary Civil Courts, a party ought not to invoke the jurisdiction of the constitutional court. That issue arose in the present case and I have addressed it above.
Whether the petitioner’s rights have been infringed.
48. Rule 4(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013 (the Mutunga Rules) provides as follows:-
“Where any right or fundamental freedom provided for in the constitution is allegedly denied, violated, or infringed, or threatened a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.”
49. The petitioner has alleged that the Respondents infringed on his constitutional rights. He has alleged violation of his Right to Protection under articles 10, 27, 46, 47 and 48 of the constitution.
50. Learned counsels for the respondents submit that the petitioner has not specifically identified the rights that have been infringed. However, I am satisfied from the pleadings that the petitioner has identified the specific constitutional violations it alleges against the respondents. I am therefore satisfied that this petition has met the legal threshold for a constitutional petition.
51. The Petitioner contends that it lawfully applied for and paid for electricity supply to its premises which the 1 st respondent did supply but afterwards arbitrarily disconnected due to a dispute over the billing of the same. These allegations are not disputed by the 1 st respondent.
52. Section 158 of the Energy Act provides for disconnection of metres as follows:
158. Procedure before connection, disconnection or adjustment of meters
(1) The licensee shall not connect or disconnect any meter to be used for ascertaining the quantity of electrical energy supplied, or a consumer's check meter, unless the licensee has obtained the written consent of that person, or alternatively unless the licensee has given to that person not less than forty-eight hours' written notice of intention to do so.
53. Further section 160 of the Act provides for the circumstances when electrical energy may be refused or disconnected. Section 160(2) provides that:
160 (2) Where a person has given a licensee a deposit as security for payment for the supply of electrical energy, the licensee may, at any time, while any such charge or other sum remains unpaid and after giving that person not less than fourteen days' notice in writing—
(a) discontinue the supply of electrical energy to such person; or
(b) apply the deposit for the electrical energy consumed and if any part of such charge or other sum remains unpaid thereafter, discontinue the supply of electrical energy to such person, until such charge or other sum together with any expenses incurred in disconnecting such supply and any lawful charges for or incidental to the reconnection thereof have been paid.
54. Section 160(3) then provides that any dispute arising from such disconnection shall be referred to the Authority. Therefore, 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. However, as stated above the issue was not how the dispute was to be resolved but whether or not the respondents were in fact resolving the dispute when the petitioner approached the court and therefore whether the petitioner’s case before this court is warranted.
55. Article 10 of the Constitution of Kenya provides for the national values and principles of governance that the same bind all persons whenever the person, with reference to this particular petition, applies any law. There are several values and principles listed under the article. However, the petitioner has not identified which of the values and principles has been violated by each of the respondents and how.
56. Article 27 of the Constitution of Kenya 2010 provides
“Every person is equal before the law and has the right to equal protection and equal benefit of the law.”
57. The petitioner claimed that the arbitrary actions of the respondents in failing to act upon its complaint violated its rights under this provision of the Constitution . There is no doubt that the petitioner enjoys equal protection of the law like all other persons. Therefore, where either of the respondents failed to apply the law as provided, with respect to the petitioner, then it would have violated the petitioner’s right to equal protection of the law.
58. Article 46 of the Constitution provides for Consumer Rights as follows:
46. Consumer rights
(1) Consumers have the right—
(a) to goods and services of reasonable quality;
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