Introduction
1. On 14 February 2025, the 1st respondent, the Kenya Power & Lighting Company PLC ("KPLC" or "the 1st respondent"), disconnected the supply of electricity to several offices of the 1st interested party, the County Government of Nairobi, on account of unpaid electricity bills. The disconnection precipitated a public standoff between the utility and the County that played out, quite literally, on the streets of the capital, and was ultimately defused through a mediation convened by the Head of the Public Service, following which power was restored. It is that episode, and the pattern of conduct of which the petitioner says it forms part, that has given rise to this petition.
2. The petition raises a question of considerable public importance, which is, whether a State-controlled utility, which enjoys a de facto monopoly over the distribution and retail supply of electrical energy in Kenya, may resort to the self-help remedy of disconnecting electricity to the offices and essential installations of a county government including, on the material before this court, threatened disconnections to a maternity hospital, mortuaries, fire stations and street lighting, as a means of collecting a disputed debt, without first invoking the intergovernmental dispute resolution mechanisms contemplated by article 189 of the Constitution and the Intergovernmental Relations Act, cap. 265F ("IGRA"), and the special debt-collection procedure prescribed by section 161 of the Energy Act, cap.314.
3. Beneath that question lies a second, and in my humble view, the more profound question of what do the social and economic rights guaranteed to every person under article 43 of the Constitution demand of a State organ or agency whose conduct interferes with, or threatens to interfere with, the existing enjoyment of those rights? It is on this second question that the parties have joined issue most sharply, and it is on this question that I have found it necessary to consider not only the pronouncements of our own courts but also the jurisprudence of the Constitutional Court of South Africa, the Supreme Court of India, and courts of other Commonwealth jurisdictions whose constitutional texts and experiences illuminate our own.
The parties
4. The petitioner, Charles Waithaka Rubia, describes himself as a resident of Mombasa County suing in his own interest and in the public interest of the residents of Kenya’s forty-seven counties. The 1st respondent is a public utility company incorporated under the Companies Act and listed on the Nairobi Securities Exchange, in which the national government holds a controlling stake of 50.1 per cent of the issued shares. It is the licensed distributor and retailer of electrical energy in Kenya under the Energy Act. The 2nd respondent is the Cabinet Secretary responsible for energy and petroleum, under whose State Department the 1st respondent is placed. The 3rd respondent is the Hon. Attorney General, sued in his representative capacity under article 156(4) of the Constitution. The 1st interested party is the County Government of Nairobi, a county government established under article 176 of the Constitution, and the 2nd interested party is the Council of Governors, a body established under sections 19 and 20 of IGRA.
The petition and the petitioner’s case
5. By his petition dated 28 February 2025, the petitioner prays for the following orders:
(a) An order quashing the action by the 1st respondent to cut off power supply to the 1st interested party;
(b) An order to the 1st respondent to restore the cut power to the offices and essential services of the 1st interested party pending determination of the dispute with the 1st interested party under the Intergovernmental Relations Act;
(c) A declaration terming the act of arbitrary cutting of power supply by the 1st respondent without exhausting the dispute mechanisms provided under the Intergovernmental Relations Act to be unconstitutional;
(d) A declaration that cutting of power supply by the 1st respondent without exhausting the dispute mechanisms provided under the Intergovernmental Relations Act is unconstitutional and breaches Kenyans’ rights to the highest standards of healthcare under article 43 of the Constitution;
(e) A declaration that cutting off power to essential services of the 1st interested party such as street lighting, without exhausting the dispute resolution measures in the Intergovernmental Relations Act, is unconstitutional for endangering Kenyans’ right to protection of their safety in the public streets, and economic interests from businesses dependent on electric power supply;
(f) An order directing the 1st respondent to forward its alleged payment of bills dispute with the 1st interested party to the quasi-judicial dispute resolution mechanisms provided under the Intergovernmental Relations Act;
(g) Any other order this Honourable Court deems fit to grant; and
(h) Costs of the petition.
6. The petition is supported by two affidavits sworn by the petitioner on 28 February 2025. The factual foundation of the petitioner’s case may be summarised as follows. On 14 February 2025, the 1st respondent disconnected electricity to several offices of the 1st interested party over unpaid bills, grinding, in the petitioner’s words, the machinery of the County to a halt. In the supporting affidavit accompanying his motion, the petitioner further deposed that the 1st respondent had threatened to disconnect electricity to Pumwani Maternity Hospital and various mortuaries run by the County, an escalation which, he deposed, would instantly imperil patients on life-support; to the fire station services, an essential emergency service; and to power supply at night, the only time garbage and sewerage can safely be moved in the city.
7. The petitioner contends that the disconnection of 14 February 2025 was not an isolated incident but part of a pattern. He cites the disconnection of Busia County Referral Hospital some eight years earlier over an unpaid bill of Kshs. 500,000/=, which, according to the then Medical Superintendent, severely affected services in the theatre and nursery and forced accident victims to be transferred to a private facility; the loss of power at Kisumu District Hospital in 2014; a similar crisis at Mombasa (Coast General Teaching and Referral) Hospital in March 2023; and the disruption of Homa Bay’s water supply when power to its intake facility was cut. He avers that while the 1st respondent swiftly disconnects counties over unpaid bills, it itself owes the counties billions of shillings in unpaid land rates, wayleave charges and water bills.
8. The petitioner’s case in law is that the dispute between the 1st respondent, a State corporation in which the national government holds a controlling interest and over which it exercises pervasive control, and the 1st interested party is an intergovernmental dispute within the meaning of article 189 of the Constitution; that articles 189(3) and (4) and sections 30 to 35 of IGRA obliged the 1st respondent to make every reasonable effort to resolve the dispute amicably, and to apply and exhaust the alternative dispute resolution mechanisms established under that Act, before resorting to what he terms the draconian self-help of disconnection; and that the disconnection, effected without adequate public notice, violated or threatened the rights of Kenyans under articles 26, 28, 35, 43, 46 and 47 of the Constitution.
9. In his written submissions dated 12 October 2025, learned counsel for the petitioner, Mr. Mogaka, developed three issues: first, whether KPLC, a State-owned corporation, ought to have taken its dispute with Nairobi County through the intergovernmental dispute resolution mechanism under article 189; secondly, whether a county government and its electricity supply constitute an essential service within the meaning of section 81 of the Labour Relations Act; and thirdly, whether cutting electricity supply to critical infrastructure and essential services of a county government breaches the rights of Kenyans under the Constitution.
10. On the first issue, counsel submitted that the corporate veil cannot obscure the reality that KPLC is an instrument of the national government: the national government holds the controlling stake; the State directly appoints five of the nine directors; Executive Order No. 2 of November 2023 on the Organisation of Government places KPLC under the State Department for Energy; its terms of service are regulated by the State Corporations Advisory Committee; its governance is subject to the Mwongozo Code of Corporate Governance for State Corporations; and its mandate flows from statute and historical continuity dating to 1922 rather than from any competitive procurement. Counsel relied on the principles governing the lifting of the corporate veil discussed in Ukwala Supermarket v Jaideep Shah & another [2022] KEHC 2207 (KLR) and on Mwarania v Cabinet Secretary, National Treasury & 2 others [2023] KEELRC 2541 (KLR). He submitted further that under the Fourth Schedule to the Constitution electricity is a shared function, energy policy including electricity and gas reticulation and energy regulation being a national government function, while county planning and development, including electricity and gas reticulation and energy regulation, and street lighting under county transport, are county functions; so that any dispute relating to electricity between the parties is an intergovernmental dispute attracting article 189(2) and (3).
11. Counsel pointed to the history of precisely such intergovernmental engagement between these very parties: the 2012 joint committee established at the direction of the Parliamentary Committee on Local Authorities and Funds, which brought together the Permanent Secretaries for Finance and Local Government, the 1st respondent’s Managing Director and the then Town Clerk, and which reconciled the parties’ mutual indebtedness, the City Council paying Kshs. 453,361,474.50 by instalments, the 1st respondent waiving Kshs. 212,098,347.95, and the wayleave debt being agreed at Kshs. 426,167,900; and the February 2025 mediation convened by the Head of the Public Service, Mr. Felix Koskei, bringing together the Governor of Nairobi and the Cabinet Secretary for Energy, which resulted in the restoration of power. These interventions, counsel submitted, are an acknowledgment by conduct that the dispute is intergovernmental in character.
12. On the second and third issues, counsel submitted that electricity, though not expressly enumerated in the Bill of Rights, is inextricably linked to the rights to life, dignity and health, and is properly regarded as a derivative or enabling socio-economic right through which the rights under article 43 are realised. He invoked article 14(2)(h) of the Convention on the Elimination of All Forms of Discrimination Against Women, which Kenya ratified in 1984 and which recognises the right to adequate living conditions particularly in relation to housing, sanitation, electricity and water supply; Sustainable Development Goal 7 on universal access to energy; and the International Labour Organisation’s conception of essential services as those whose interruption would endanger the life or health of the population, a conception domesticated in section 81 of the Labour Relations Act, whose Fourth Schedule lists, among essential services, water supply services, hospital services, fire services and local government authorities, whose functions the county governments inherited.
13. Counsel drew the court’s attention to comparative jurisprudence. From India, he cited Sudharshan Kumar Sharma & another v State of NCT of Delhi & others, W.P.(C) 13217/2019 (Delhi High Court, 14 November 2022), and the observation of the Supreme Court of India in Dilip (Dead) through LRs v Satish & others, Criminal Appeal No. 810 of 2022, that "electricity is a basic amenity of which a person cannot be deprived"; and the recognition in Association of Hospitals v Maharashtra Electricity Regulatory Commission (APTEL) and Association of Industrial Electricity Users v State of A.P. that hospitals and comparable institutions constitute a distinct class of consumer that cannot be equated with commercial consumers. From Australia, he cited the life-support customer protections in the National Energy Retail Rules (rr. 124A–124D), under which supply may not be disconnected from premises on which life-support equipment is operated, even where bills are unpaid, and the analogous restrictions on water disconnection under the Water Industry Competition (General) Regulation 2024. From South Africa, he relied on Joseph v City of Johannesburg 2010 (4) SA 55 (CC) for the proposition that electricity is an important basic municipal service which local government is ordinarily obliged to provide, and that the rights and obligations attending its supply have their basis in public law.
The 1st respondent’s case
14. The 1st respondent opposes the petition through the replying affidavit of Ms. Nicole Kihara, a Legal Officer in its employ, sworn on 24 November 2025, and through written submissions dated 3 April 2026 filed by learned counsel Ms. Owano. Its case may be summarised under five heads.
15. First, the 1st respondent contends that the petition is sub judice. It points to Milimani ELCEPPET/E009/2025: Kenya Power & Lighting Company v County Government of Nairobi & Nairobi Water & Sewerage Company Ltd, filed at the Environment and Land Court on 24 February 2025, four days before this petition, which, it says, concerns the same disconnection of 14 February 2025, the 1st interested party’s retaliation, and its aftermath. Relying on section 6 of the Civil Procedure Act, the decision of the Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR, and Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR, the 1st respondent urges this court to down its tools to avoid the risk of conflicting decisions.
16. Secondly, the 1st respondent contends that the petitioner lacks locus standi. In its view, a plain reading of the petition reveals that the petitioner is, in substance, prosecuting the 1st interested party’s cause in the sense that all the alleged violations arise from engagements between the 1st respondent and the County relating to a contract for the supply of electricity, and the prayers sought are orders and declarations in favour of the County. Since the County is, under articles 176(2) and 235 of the Constitution as read with sections 6, 56 and 57 of the County Governments Act, a body corporate capable of suing in its own name, the petitioner has no legal or factual basis to purport to vindicate its rights or to litigate on behalf of the forty-seven counties. Reliance was placed on Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] eKLR and Enrico Quercioli & another v Director of Public Prosecutions & 2 others [2021] eKLR.
17. Thirdly, the 1st respondent contends that the petition does not meet the standard of precision required of constitutional petitions. Citing Anarita Karimi Njeru v Republic (1979) KLR 154, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR, it submits that the petitioner has not demonstrated, with the requisite particularity, the specific rights violated, the manner of their violation, or any nexus between the impugned conduct and the violation of the petitioner’s own rights. As to article 43, it is deposed that no incident report, no affidavit from any health facility, no medical evidence, and no clear causation linking any disconnection to a denial of health services has been placed before the court; as to article 35, no request for information and no refusal has been shown; and as to article 47, disconnection for non-payment is a lawful contractual and statutory remedy under section 160 of the Energy Act, and the 1st respondent issues disconnection notices to defaulting customers in line with that Act. The events of 2014, 2015 and 2023 in other counties are dismissed as irrelevant, generalised and unsupported by evidence.
18. Fourthly, the 1st respondent contends that the petition is, in truth, an ordinary utility-billing and debt-recovery dispute dressed in constitutional garb, and that constitutional litigation cannot be used to circumvent established dispute-resolution processes. It relies on John Harun Mwau v Peter Gastrow & 3 others [2014] eKLR, Sonko v Supreme Court of Kenya & another [2023] KEHC 17295 (KLR) and Ndung’u & another v Wachira & another [2025] KEHC 7265 (KLR) for the principle of constitutional avoidance, and submits that courts cannot be transformed into debt-management tribunals.
19. Fifthly, on the merits of the article 189 claim, the 1st respondent contends that it is a public company registered under the Companies Act and listed on the Nairobi Securities Exchange; that it is not a "government" and that article 189 and IGRA apply only to disputes between governments; that the burden of initiating the mechanisms under IGRA lies on both parties to a dispute, and no attempt by the 1st interested party to invoke them has been demonstrated; that a private citizen cannot compel the initiation of those mechanisms; and that in any event its mandate under the Energy Act to bill, collect and disconnect for non-payment is not displaced by article 189, section 3 of the Energy Act providing that in the event of conflict with any other Act, the Energy Act prevails on matters of generation, transmission, distribution, supply or use of electrical energy. It depones that it does not disconnect power arbitrarily: disconnections occur only after bills accrue, notices are issued, settlement is attempted and internal regulatory requirements, including a demand letter, are observed. It explains that it does not generate electricity but purchases it in advance from KenGen and independent power producers under binding power purchase agreements with strict monthly payment obligations, and that its ability to keep the lights on for millions of consumers depends on consumers, including county governments, paying their bills as and when they fall due.
The 2nd and 3rd respondents and the interested parties
20. Despite service, the 2nd and 3rd respondents filed no response to the petition and no submissions. Neither did the 1st interested party, whose conduct is at the centre of the controversy, nor the 2nd interested party, whose public statements are quoted in the petition. The petition therefore stands opposed only by the 1st respondent and, thus, will be determined on the pleadings, affidavits and submissions of the petitioner and the 1st respondent. I would observe, without deciding anything on that account, that the silence of the Attorney General and of the County on a matter of this constitutional importance is regrettable; the court has nonetheless had the benefit of full argument on both sides of every issue.
The ruling on the preliminary objection
21. By a ruling delivered on 1 July 2025, this court overruled the 1st respondent’s preliminary objection, which had contended that the dispute-resolution architecture of the Energy Act, 2019, the reference of billing disputes to the Energy and Petroleum Regulatory Authority under section 160(3), the appeal to the Energy and Petroleum Tribunal under section 24, and the further appeal to this court under section 37(3), read with article 159(2)(c) of the Constitution and section 9(2) and (3) of the Fair Administrative Action Act, deprived this court of jurisdiction.
22. Guided by the decision of the Supreme Court in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR), the court held that neither the Authority nor the Tribunal has jurisdiction to determine alleged violations of the Constitution; that the doctrine of exhaustion does not bar a suit which primarily and genuinely seeks the enforcement of fundamental rights and freedoms, as explained in William Odhiambo Ramogi & 3 others v Attorney General & 6 others [2020] eKLR; and that while the Energy Act may, by its section 3, prevail over other statutes, it cannot prevail over the Constitution. The court further drew attention to section 161 of the Energy Act, which places the Government, county governments and Government agencies in a special category of electricity consumers whose outstanding bills a licensee is to report to the Cabinet Secretary for the National Treasury for onward reporting to Parliament for necessary appropriation. The petition was accordingly found to be properly before the court. That ruling settled the question of jurisdiction, and nothing in the submissions now before me seeks, or could properly seek, to reopen it. What remained for trial is the merits, to which I now turn.
Issues for determination
23. Having considered the petition, the affidavits, the rival submissions and the authorities cited, I frame the issues for determination as follows:
(i) Whether the petition is sub judice by reason of Milimani ELCEPPET/E009/2025;
(ii) Whether the petitioner has locus standi, and whether the petition meets the constitutional threshold of precision;
(iii) Whether the dispute between the 1st respondent and the 1st interested party is an intergovernmental dispute within the contemplation of article 189 of the Constitution and IGRA, and whether the disconnection of 14 February 2025, effected without recourse to those mechanisms or to section 161 of the Energy Act, was unconstitutional;
(iv) Whether the disconnection and threatened disconnections violated, or threatened to violate, the rights guaranteed under articles 26, 28, 35, 43, 46 and 47 of the Constitution, this being the issue on which the social and economic rights jurisprudence of this and other jurisdictions principally bears; and
(v) What reliefs, if any, should issue, and who should bear the costs.
Whether the petition is sub judice
24. Section 6 of the Civil Procedure Act provides that no court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending before a court of competent jurisdiction. The Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR restated the conditions for the application of the doctrine: there must be two or more suits filed consecutively; the matter in issue must be directly and substantially the same; the parties must be the same or parties under whom they claim, litigating under the same title; and the suits must be pending before courts of competent jurisdiction. The underlying purpose, as the 1st respondent correctly submits, is to forestall parallel litigation over the same cause and the scandal of conflicting verdicts; and as Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR teaches, it is the substance of the suits, not their form, that governs.
25. Measured against these conditions, the objection fails, in my humble view, on at least two of the four limbs. First, the parties are not the same, nor does the petitioner claim under any party to the Environment and Land Court suit. The petitioner is a private citizen suing under articles 22 and 258 of the Constitution in his own interest and in the public interest. He is a stranger to Milimani ELCEPPET/E009/2025, in which the 1st respondent sues the County Government of Nairobi and the Nairobi Water & Sewerage Company. A public-interest litigant vindicating the Bill of Rights does not litigate "under the same title" as a utility pursuing, or defending, a commercial claim.
26. Secondly, and more fundamentally, the matters in issue are not directly and substantially the same. The suit before the Environment and Land Court, on the 1st respondent’s own description, concerns the billing dispute between the 1st respondent and the County, who owes what to whom, and the County’s retaliatory conduct and its aftermath. This petition raises a categorically different question: not whether the County owes the debt, but whether the method by which the 1st respondent sought to enforce it, unilateral disconnection of a county government’s offices and essential installations without recourse to the constitutional and statutory mechanisms for the resolution of intergovernmental disputes, is consistent with the Constitution and with the fundamental rights of the public. The test posited by the 1st respondent itself, whether a final decision in the earlier suit would operate as res judicata in this one, supplies the answer: a judgment of the Environment and Land Court determining the quantum of the parties’ mutual indebtedness would not, and could not, determine the constitutional questions raised here, which that court was not asked to decide and which do not depend on the state of the account.
27. I am fortified in this conclusion by the care I propose to take, later in this judgment, to say nothing about the merits of the underlying billing dispute. This court will not determine whether the County owes the 1st respondent for electricity consumed, or whether the 1st respondent owes the County wayleave charges and land rates, or in what amounts. Those questions belong elsewhere, to the Environment and Land Court in the pending suit, or, as I shall hold, more appropriately to the intergovernmental mechanisms the Constitution has established. Confined, as this judgment is, to the constitutionality of the modality of enforcement, no risk of conflicting decisions arises. The first issue is answered in the negative; the petition is not sub judice.
Locus standi and the precision of the petition
28. The 1st respondent’s objection to the petitioner’s standing proceeds on the premise that the petitioner is prosecuting the County’s cause. That premise, in my respectful view, mistakes the nature of the claim. The petitioner does not sue to recover the County’s wayleave charges, nor to resist the County’s electricity bills, nor to vindicate any corporate right of the County. He sues because, on his case, the disconnection of power to county offices, hospitals, water installations, fire stations, mortuaries and street lighting injures and threatens the public; the eight million residents of Nairobi whom he describes, and by extension the residents of every county exposed to the same treatment, in the enjoyment of their rights to life, dignity, health, water, safety and fair administrative action. That is his cause, not the County’s.
29. The Constitution of 2010 deliberately swept away the restrictive standing rules of the former dispensation. Article 22(1) entitles every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or, importantly for this case, threatened. Article 22(2) extends that entitlement to a person acting in the public interest, and article 258 confers a parallel right on every person to institute proceedings claiming that the Constitution has been contravened or is threatened with contravention. As this court observed in its ruling of 1 July 2025, the petitioner falls squarely within the category of a public-spirited citizen raising a serious issue of public importance. The fact that the County could sue in its own name and, tellingly, has not, does not disable a citizen from complaining of the impact of the impugned conduct on the Bill of Rights. Were it otherwise, the inertia or complicity of a public body would immunise violations from scrutiny, a result article 22 was designed to prevent. The objection to standing fails.
30. As to precision, the rule in Anarita Karimi Njeru v Republic (1979) KLR 154 requires a person seeking constitutional redress to set out with reasonable precision the provisions said to be infringed and the manner of infringement. The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR cautioned, however, that the rule is a requirement of reasonable, not perfect, precision, and is not a warrant for striking out petitions on hyper-technical grounds; and the Supreme Court in Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR adopted the same standard. This petition identifies the impugned conduct (the disconnection of 14 February 2025 and the threatened disconnections of the hospital, mortuaries, fire stations and night supply); the constitutional provisions engaged (articles 6, 10, 35, 43, 46, 47 and 189); and the manner in which the conduct is said to infringe them (interference with health services, water, safety and county service delivery, absence of public notice, and bypassing of the intergovernmental dispute mechanisms). Whether those claims succeed is a matter for the merits; but the petition pleads them with sufficient particularity to be answered, and the 1st respondent has, in a full replying affidavit and submissions, answered them. The precision objection likewise fails, save that, as will appear, the want of an evidential foundation is fatal to certain of the individual claims, notably that under article 35.
Article 189, the Intergovernmental Relations Act and section 161 of the Energy Act
(a) The constitutional and statutory framework
31. Article 6(2) of the Constitution declares that the governments at the national and county levels are distinct an
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1. On 14 February 2025, the 1st respondent, the Kenya Power & Lighting Company PLC ("KPLC" or "the 1st respondent"), disconnected the supply of electricity to several offices of the 1st interested party, the County Government of Nairobi, on account of unpaid electricity bills. The disconnection precipitated a public standoff between the utility and the County that played out, quite literally, on the streets of the capital, and was ultimately defused through a mediation convened by the Head of the Public Service, following which power was restored. It is that episode, and the pattern of conduct of which the petitioner says it forms part, that has given rise to this petition.
2. The petition raises a question of considerable public importance, which is, whether a State-controlled utility, which enjoys a de facto monopoly over the distribution and retail supply of electrical energy in Kenya, may resort to the self-help remedy of disconnecting electricity to the offices and essential installations of a county government including, on the material before this court, threatened disconnections to a maternity hospital, mortuaries, fire stations and street lighting, as a means of collecting a disputed debt, without first invoking the intergovernmental dispute resolution mechanisms contemplated by article 189 of the Constitution and the Intergovernmental Relations Act, cap. 265F ("IGRA"), and the special debt-collection procedure prescribed by section 161 of the Energy Act, cap.314.
3. Beneath that question lies a second, and in my humble view, the more profound question of what do the social and economic rights guaranteed to every person under article 43 of the Constitution demand of a State organ or agency whose conduct interferes with, or threatens to interfere with, the existing enjoyment of those rights? It is on this second question that the parties have joined issue most sharply, and it is on this question that I have found it necessary to consider not only the pronouncements of our own courts but also the jurisprudence of the Constitutional Court of South Africa, the Supreme Court of India, and courts of other Commonwealth jurisdictions whose constitutional texts and experiences illuminate our own.
The parties
4. The petitioner, Charles Waithaka Rubia, describes himself as a resident of Mombasa County suing in his own interest and in the public interest of the residents of Kenya’s forty-seven counties. The 1st respondent is a public utility company incorporated under the Companies Act and listed on the Nairobi Securities Exchange, in which the national government holds a controlling stake of 50.1 per cent of the issued shares. It is the licensed distributor and retailer of electrical energy in Kenya under the Energy Act. The 2nd respondent is the Cabinet Secretary responsible for energy and petroleum, under whose State Department the 1st respondent is placed. The 3rd respondent is the Hon. Attorney General, sued in his representative capacity under article 156(4) of the Constitution. The 1st interested party is the County Government of Nairobi, a county government established under article 176 of the Constitution, and the 2nd interested party is the Council of Governors, a body established under sections 19 and 20 of IGRA.
The petition and the petitioner’s case
5. By his petition dated 28 February 2025, the petitioner prays for the following orders:
(a) An order quashing the action by the 1st respondent to cut off power supply to the 1st interested party;
(b) An order to the 1st respondent to restore the cut power to the offices and essential services of the 1st interested party pending determination of the dispute with the 1st interested party under the Intergovernmental Relations Act;
(c) A declaration terming the act of arbitrary cutting of power supply by the 1st respondent without exhausting the dispute mechanisms provided under the Intergovernmental Relations Act to be unconstitutional;
(d) A declaration that cutting of power supply by the 1st respondent without exhausting the dispute mechanisms provided under the Intergovernmental Relations Act is unconstitutional and breaches Kenyans’ rights to the highest standards of healthcare under article 43 of the Constitution;
(e) A declaration that cutting off power to essential services of the 1st interested party such as street lighting, without exhausting the dispute resolution measures in the Intergovernmental Relations Act, is unconstitutional for endangering Kenyans’ right to protection of their safety in the public streets, and economic interests from businesses dependent on electric power supply;
(f) An order directing the 1st respondent to forward its alleged payment of bills dispute with the 1st interested party to the quasi-judicial dispute resolution mechanisms provided under the Intergovernmental Relations Act;
(g) Any other order this Honourable Court deems fit to grant; and
(h) Costs of the petition.
6. The petition is supported by two affidavits sworn by the petitioner on 28 February 2025. The factual foundation of the petitioner’s case may be summarised as follows. On 14 February 2025, the 1st respondent disconnected electricity to several offices of the 1st interested party over unpaid bills, grinding, in the petitioner’s words, the machinery of the County to a halt. In the supporting affidavit accompanying his motion, the petitioner further deposed that the 1st respondent had threatened to disconnect electricity to Pumwani Maternity Hospital and various mortuaries run by the County, an escalation which, he deposed, would instantly imperil patients on life-support; to the fire station services, an essential emergency service; and to power supply at night, the only time garbage and sewerage can safely be moved in the city.
7. The petitioner contends that the disconnection of 14 February 2025 was not an isolated incident but part of a pattern. He cites the disconnection of Busia County Referral Hospital some eight years earlier over an unpaid bill of Kshs. 500,000/=, which, according to the then Medical Superintendent, severely affected services in the theatre and nursery and forced accident victims to be transferred to a private facility; the loss of power at Kisumu District Hospital in 2014; a similar crisis at Mombasa (Coast General Teaching and Referral) Hospital in March 2023; and the disruption of Homa Bay’s water supply when power to its intake facility was cut. He avers that while the 1st respondent swiftly disconnects counties over unpaid bills, it itself owes the counties billions of shillings in unpaid land rates, wayleave charges and water bills.
8. The petitioner’s case in law is that the dispute between the 1st respondent, a State corporation in which the national government holds a controlling interest and over which it exercises pervasive control, and the 1st interested party is an intergovernmental dispute within the meaning of article 189 of the Constitution; that articles 189(3) and (4) and sections 30 to 35 of IGRA obliged the 1st respondent to make every reasonable effort to resolve the dispute amicably, and to apply and exhaust the alternative dispute resolution mechanisms established under that Act, before resorting to what he terms the draconian self-help of disconnection; and that the disconnection, effected without adequate public notice, violated or threatened the rights of Kenyans under articles 26, 28, 35, 43, 46 and 47 of the Constitution.
9. In his written submissions dated 12 October 2025, learned counsel for the petitioner, Mr. Mogaka, developed three issues: first, whether KPLC, a State-owned corporation, ought to have taken its dispute with Nairobi County through the intergovernmental dispute resolution mechanism under article 189; secondly, whether a county government and its electricity supply constitute an essential service within the meaning of section 81 of the Labour Relations Act; and thirdly, whether cutting electricity supply to critical infrastructure and essential services of a county government breaches the rights of Kenyans under the Constitution.
10. On the first issue, counsel submitted that the corporate veil cannot obscure the reality that KPLC is an instrument of the national government: the national government holds the controlling stake; the State directly appoints five of the nine directors; Executive Order No. 2 of November 2023 on the Organisation of Government places KPLC under the State Department for Energy; its terms of service are regulated by the State Corporations Advisory Committee; its governance is subject to the Mwongozo Code of Corporate Governance for State Corporations; and its mandate flows from statute and historical continuity dating to 1922 rather than from any competitive procurement. Counsel relied on the principles governing the lifting of the corporate veil discussed in Ukwala Supermarket v Jaideep Shah & another [2022] KEHC 2207 (KLR) and on Mwarania v Cabinet Secretary, National Treasury & 2 others [2023] KEELRC 2541 (KLR). He submitted further that under the Fourth Schedule to the Constitution electricity is a shared function, energy policy including electricity and gas reticulation and energy regulation being a national government function, while county planning and development, including electricity and gas reticulation and energy regulation, and street lighting under county transport, are county functions; so that any dispute relating to electricity between the parties is an intergovernmental dispute attracting article 189(2) and (3).
11. Counsel pointed to the history of precisely such intergovernmental engagement between these very parties: the 2012 joint committee established at the direction of the Parliamentary Committee on Local Authorities and Funds, which brought together the Permanent Secretaries for Finance and Local Government, the 1st respondent’s Managing Director and the then Town Clerk, and which reconciled the parties’ mutual indebtedness, the City Council paying Kshs. 453,361,474.50 by instalments, the 1st respondent waiving Kshs. 212,098,347.95, and the wayleave debt being agreed at Kshs. 426,167,900; and the February 2025 mediation convened by the Head of the Public Service, Mr. Felix Koskei, bringing together the Governor of Nairobi and the Cabinet Secretary for Energy, which resulted in the restoration of power. These interventions, counsel submitted, are an acknowledgment by conduct that the dispute is intergovernmental in character.
12. On the second and third issues, counsel submitted that electricity, though not expressly enumerated in the Bill of Rights, is inextricably linked to the rights to life, dignity and health, and is properly regarded as a derivative or enabling socio-economic right through which the rights under article 43 are realised. He invoked article 14(2)(h) of the Convention on the Elimination of All Forms of Discrimination Against Women, which Kenya ratified in 1984 and which recognises the right to adequate living conditions particularly in relation to housing, sanitation, electricity and water supply; Sustainable Development Goal 7 on universal access to energy; and the International Labour Organisation’s conception of essential services as those whose interruption would endanger the life or health of the population, a conception domesticated in section 81 of the Labour Relations Act, whose Fourth Schedule lists, among essential services, water supply services, hospital services, fire services and local government authorities, whose functions the county governments inherited.
13. Counsel drew the court’s attention to comparative jurisprudence. From India, he cited Sudharshan Kumar Sharma & another v State of NCT of Delhi & others, W.P.(C) 13217/2019 (Delhi High Court, 14 November 2022), and the observation of the Supreme Court of India in Dilip (Dead) through LRs v Satish & others, Criminal Appeal No. 810 of 2022, that "electricity is a basic amenity of which a person cannot be deprived"; and the recognition in Association of Hospitals v Maharashtra Electricity Regulatory Commission (APTEL) and Association of Industrial Electricity Users v State of A.P. that hospitals and comparable institutions constitute a distinct class of consumer that cannot be equated with commercial consumers. From Australia, he cited the life-support customer protections in the National Energy Retail Rules (rr. 124A–124D), under which supply may not be disconnected from premises on which life-support equipment is operated, even where bills are unpaid, and the analogous restrictions on water disconnection under the Water Industry Competition (General) Regulation 2024. From South Africa, he relied on Joseph v City of Johannesburg 2010 (4) SA 55 (CC) for the proposition that electricity is an important basic municipal service which local government is ordinarily obliged to provide, and that the rights and obligations attending its supply have their basis in public law.
The 1st respondent’s case
14. The 1st respondent opposes the petition through the replying affidavit of Ms. Nicole Kihara, a Legal Officer in its employ, sworn on 24 November 2025, and through written submissions dated 3 April 2026 filed by learned counsel Ms. Owano. Its case may be summarised under five heads.
15. First, the 1st respondent contends that the petition is sub judice. It points to Milimani ELCEPPET/E009/2025: Kenya Power & Lighting Company v County Government of Nairobi & Nairobi Water & Sewerage Company Ltd, filed at the Environment and Land Court on 24 February 2025, four days before this petition, which, it says, concerns the same disconnection of 14 February 2025, the 1st interested party’s retaliation, and its aftermath. Relying on section 6 of the Civil Procedure Act, the decision of the Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR, and Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR, the 1st respondent urges this court to down its tools to avoid the risk of conflicting decisions.
16. Secondly, the 1st respondent contends that the petitioner lacks locus standi. In its view, a plain reading of the petition reveals that the petitioner is, in substance, prosecuting the 1st interested party’s cause in the sense that all the alleged violations arise from engagements between the 1st respondent and the County relating to a contract for the supply of electricity, and the prayers sought are orders and declarations in favour of the County. Since the County is, under articles 176(2) and 235 of the Constitution as read with sections 6, 56 and 57 of the County Governments Act, a body corporate capable of suing in its own name, the petitioner has no legal or factual basis to purport to vindicate its rights or to litigate on behalf of the forty-seven counties. Reliance was placed on Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] eKLR and Enrico Quercioli & another v Director of Public Prosecutions & 2 others [2021] eKLR.
17. Thirdly, the 1st respondent contends that the petition does not meet the standard of precision required of constitutional petitions. Citing Anarita Karimi Njeru v Republic (1979) KLR 154, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR, it submits that the petitioner has not demonstrated, with the requisite particularity, the specific rights violated, the manner of their violation, or any nexus between the impugned conduct and the violation of the petitioner’s own rights. As to article 43, it is deposed that no incident report, no affidavit from any health facility, no medical evidence, and no clear causation linking any disconnection to a denial of health services has been placed before the court; as to article 35, no request for information and no refusal has been shown; and as to article 47, disconnection for non-payment is a lawful contractual and statutory remedy under section 160 of the Energy Act, and the 1st respondent issues disconnection notices to defaulting customers in line with that Act. The events of 2014, 2015 and 2023 in other counties are dismissed as irrelevant, generalised and unsupported by evidence.
18. Fourthly, the 1st respondent contends that the petition is, in truth, an ordinary utility-billing and debt-recovery dispute dressed in constitutional garb, and that constitutional litigation cannot be used to circumvent established dispute-resolution processes. It relies on John Harun Mwau v Peter Gastrow & 3 others [2014] eKLR, Sonko v Supreme Court of Kenya & another [2023] KEHC 17295 (KLR) and Ndung’u & another v Wachira & another [2025] KEHC 7265 (KLR) for the principle of constitutional avoidance, and submits that courts cannot be transformed into debt-management tribunals.
19. Fifthly, on the merits of the article 189 claim, the 1st respondent contends that it is a public company registered under the Companies Act and listed on the Nairobi Securities Exchange; that it is not a "government" and that article 189 and IGRA apply only to disputes between governments; that the burden of initiating the mechanisms under IGRA lies on both parties to a dispute, and no attempt by the 1st interested party to invoke them has been demonstrated; that a private citizen cannot compel the initiation of those mechanisms; and that in any event its mandate under the Energy Act to bill, collect and disconnect for non-payment is not displaced by article 189, section 3 of the Energy Act providing that in the event of conflict with any other Act, the Energy Act prevails on matters of generation, transmission, distribution, supply or use of electrical energy. It depones that it does not disconnect power arbitrarily: disconnections occur only after bills accrue, notices are issued, settlement is attempted and internal regulatory requirements, including a demand letter, are observed. It explains that it does not generate electricity but purchases it in advance from KenGen and independent power producers under binding power purchase agreements with strict monthly payment obligations, and that its ability to keep the lights on for millions of consumers depends on consumers, including county governments, paying their bills as and when they fall due.
The 2nd and 3rd respondents and the interested parties
20. Despite service, the 2nd and 3rd respondents filed no response to the petition and no submissions. Neither did the 1st interested party, whose conduct is at the centre of the controversy, nor the 2nd interested party, whose public statements are quoted in the petition. The petition therefore stands opposed only by the 1st respondent and, thus, will be determined on the pleadings, affidavits and submissions of the petitioner and the 1st respondent. I would observe, without deciding anything on that account, that the silence of the Attorney General and of the County on a matter of this constitutional importance is regrettable; the court has nonetheless had the benefit of full argument on both sides of every issue.
The ruling on the preliminary objection
21. By a ruling delivered on 1 July 2025, this court overruled the 1st respondent’s preliminary objection, which had contended that the dispute-resolution architecture of the Energy Act, 2019, the reference of billing disputes to the Energy and Petroleum Regulatory Authority under section 160(3), the appeal to the Energy and Petroleum Tribunal under section 24, and the further appeal to this court under section 37(3), read with article 159(2)(c) of the Constitution and section 9(2) and (3) of the Fair Administrative Action Act, deprived this court of jurisdiction.
22. Guided by the decision of the Supreme Court in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR), the court held that neither the Authority nor the Tribunal has jurisdiction to determine alleged violations of the Constitution; that the doctrine of exhaustion does not bar a suit which primarily and genuinely seeks the enforcement of fundamental rights and freedoms, as explained in William Odhiambo Ramogi & 3 others v Attorney General & 6 others [2020] eKLR; and that while the Energy Act may, by its section 3, prevail over other statutes, it cannot prevail over the Constitution. The court further drew attention to section 161 of the Energy Act, which places the Government, county governments and Government agencies in a special category of electricity consumers whose outstanding bills a licensee is to report to the Cabinet Secretary for the National Treasury for onward reporting to Parliament for necessary appropriation. The petition was accordingly found to be properly before the court. That ruling settled the question of jurisdiction, and nothing in the submissions now before me seeks, or could properly seek, to reopen it. What remained for trial is the merits, to which I now turn.
Issues for determination
23. Having considered the petition, the affidavits, the rival submissions and the authorities cited, I frame the issues for determination as follows:
(i) Whether the petition is sub judice by reason of Milimani ELCEPPET/E009/2025;
(ii) Whether the petitioner has locus standi, and whether the petition meets the constitutional threshold of precision;
(iii) Whether the dispute between the 1st respondent and the 1st interested party is an intergovernmental dispute within the contemplation of article 189 of the Constitution and IGRA, and whether the disconnection of 14 February 2025, effected without recourse to those mechanisms or to section 161 of the Energy Act, was unconstitutional;
(iv) Whether the disconnection and threatened disconnections violated, or threatened to violate, the rights guaranteed under articles 26, 28, 35, 43, 46 and 47 of the Constitution, this being the issue on which the social and economic rights jurisprudence of this and other jurisdictions principally bears; and
(v) What reliefs, if any, should issue, and who should bear the costs.
Whether the petition is sub judice
24. Section 6 of the Civil Procedure Act provides that no court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending before a court of competent jurisdiction. The Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR restated the conditions for the application of the doctrine: there must be two or more suits filed consecutively; the matter in issue must be directly and substantially the same; the parties must be the same or parties under whom they claim, litigating under the same title; and the suits must be pending before courts of competent jurisdiction. The underlying purpose, as the 1st respondent correctly submits, is to forestall parallel litigation over the same cause and the scandal of conflicting verdicts; and as Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR teaches, it is the substance of the suits, not their form, that governs.
25. Measured against these conditions, the objection fails, in my humble view, on at least two of the four limbs. First, the parties are not the same, nor does the petitioner claim under any party to the Environment and Land Court suit. The petitioner is a private citizen suing under articles 22 and 258 of the Constitution in his own interest and in the public interest. He is a stranger to Milimani ELCEPPET/E009/2025, in which the 1st respondent sues the County Government of Nairobi and the Nairobi Water & Sewerage Company. A public-interest litigant vindicating the Bill of Rights does not litigate "under the same title" as a utility pursuing, or defending, a commercial claim.
26. Secondly, and more fundamentally, the matters in issue are not directly and substantially the same. The suit before the Environment and Land Court, on the 1st respondent’s own description, concerns the billing dispute between the 1st respondent and the County, who owes what to whom, and the County’s retaliatory conduct and its aftermath. This petition raises a categorically different question: not whether the County owes the debt, but whether the method by which the 1st respondent sought to enforce it, unilateral disconnection of a county government’s offices and essential installations without recourse to the constitutional and statutory mechanisms for the resolution of intergovernmental disputes, is consistent with the Constitution and with the fundamental rights of the public. The test posited by the 1st respondent itself, whether a final decision in the earlier suit would operate as res judicata in this one, supplies the answer: a judgment of the Environment and Land Court determining the quantum of the parties’ mutual indebtedness would not, and could not, determine the constitutional questions raised here, which that court was not asked to decide and which do not depend on the state of the account.
27. I am fortified in this conclusion by the care I propose to take, later in this judgment, to say nothing about the merits of the underlying billing dispute. This court will not determine whether the County owes the 1st respondent for electricity consumed, or whether the 1st respondent owes the County wayleave charges and land rates, or in what amounts. Those questions belong elsewhere, to the Environment and Land Court in the pending suit, or, as I shall hold, more appropriately to the intergovernmental mechanisms the Constitution has established. Confined, as this judgment is, to the constitutionality of the modality of enforcement, no risk of conflicting decisions arises. The first issue is answered in the negative; the petition is not sub judice.
Locus standi and the precision of the petition
28. The 1st respondent’s objection to the petitioner’s standing proceeds on the premise that the petitioner is prosecuting the County’s cause. That premise, in my respectful view, mistakes the nature of the claim. The petitioner does not sue to recover the County’s wayleave charges, nor to resist the County’s electricity bills, nor to vindicate any corporate right of the County. He sues because, on his case, the disconnection of power to county offices, hospitals, water installations, fire stations, mortuaries and street lighting injures and threatens the public; the eight million residents of Nairobi whom he describes, and by extension the residents of every county exposed to the same treatment, in the enjoyment of their rights to life, dignity, health, water, safety and fair administrative action. That is his cause, not the County’s.
29. The Constitution of 2010 deliberately swept away the restrictive standing rules of the former dispensation. Article 22(1) entitles every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or, importantly for this case, threatened. Article 22(2) extends that entitlement to a person acting in the public interest, and article 258 confers a parallel right on every person to institute proceedings claiming that the Constitution has been contravened or is threatened with contravention. As this court observed in its ruling of 1 July 2025, the petitioner falls squarely within the category of a public-spirited citizen raising a serious issue of public importance. The fact that the County could sue in its own name and, tellingly, has not, does not disable a citizen from complaining of the impact of the impugned conduct on the Bill of Rights. Were it otherwise, the inertia or complicity of a public body would immunise violations from scrutiny, a result article 22 was designed to prevent. The objection to standing fails.
30. As to precision, the rule in Anarita Karimi Njeru v Republic (1979) KLR 154 requires a person seeking constitutional redress to set out with reasonable precision the provisions said to be infringed and the manner of infringement. The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR cautioned, however, that the rule is a requirement of reasonable, not perfect, precision, and is not a warrant for striking out petitions on hyper-technical grounds; and the Supreme Court in Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR adopted the same standard. This petition identifies the impugned conduct (the disconnection of 14 February 2025 and the threatened disconnections of the hospital, mortuaries, fire stations and night supply); the constitutional provisions engaged (articles 6, 10, 35, 43, 46, 47 and 189); and the manner in which the conduct is said to infringe them (interference with health services, water, safety and county service delivery, absence of public notice, and bypassing of the intergovernmental dispute mechanisms). Whether those claims succeed is a matter for the merits; but the petition pleads them with sufficient particularity to be answered, and the 1st respondent has, in a full replying affidavit and submissions, answered them. The precision objection likewise fails, save that, as will appear, the want of an evidential foundation is fatal to certain of the individual claims, notably that under article 35.
Article 189, the Intergovernmental Relations Act and section 161 of the Energy Act
(a) The constitutional and statutory framework
31. Article 6(2) of the Constitution declares that the governments at the national and county levels are distinct an
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