REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E457 OF 2023
KEVIN JASIRI…………………………………………………….PETITIONER
VERSUS
KENYA POWER AND LIGHTING CORPORATION …….1 ST RESPONDENT
ENERGY AND PETROLEUM
REGULATORY AUTHORITY ……………………………..2 ND RESPONDENT
COMPETITION AUTHORITY OF KENYA………………..3 RD RESPONDENT
KENYA CONSUMERS PROTECTION
ADVISORY COMMITTEE………………………………….4 TH RESPONDENT
JUDGMENT
Background
On 24 th April 2023 and 3 rd October 2023, the 1 st respondent interrupted electricity supply within the petitioner’s area by uninstalling a step-down power transformer for repairs without notice to the local community or information when power would be restored. Power not restored until 26 th April and 6 th October, respectively.
After the reinstallation of the transformer, power supply interruption became regular as evidenced by six tickets issued by the 1 st respondent for the period between 3 rd October 2023 and 19 th October 2023. Owing to this resurgence, on 17 th October 2023 the petitioner wrote a demand letter to the 1 st respondent requesting for a permanent solution. The petitioner also filed a complaint with the 3 rd respondent.
On 18 th October 2023 the 1 st respondent’s officer, one Ruth Kasera, called the petitioner asking for direction to the transformer which the petitioner did. After being shown the transformer, Ms. aser and her team surveyed the area and promised to share their findings with the relevant department for appropriate action.
On 19 th October 2023, the 1 st respondent’s personnel went to the transformer cut off power supply affecting four rental buildings. The petitioner contacted the 1 st respondent’s customer care to inquire on the reasons for the action and talked to a gentleman called Jackson. Jackson informed the petitioner that disconnection of power to the buildings was a contingency measure to reduce transformer overload. The petitioner requested for an official statement but none was given, necessitating the petitioner to send an email but the 1 st respondent remained unresponsive.
On 23 rd October 2023 the petitioner notified the 2 nd and 3 rd respondents of the complaint through email and the 3 rd respondent acknowledged receipt of the complaint. the 3 rd respondent however advised the petitioner to seek redress from the 2 nd respondent. On the other hand, both the 1 st and 2 nd respondents remained unresponsive.
The petitioner then served a notice of intention to sue on 24 th October prompting the 1 st respondent to reconnect the power supply to the buildings on the same day but did not reconnect electrical power for water pumping system to the buildings.
Petition
Based on the above background, the petitioner filed this petition arguing that the respondents’ failure to discharge their mandate impedes and threatens his right and the local community of access to basic functional human needs and an opportunity to contribute to socio economic development. The disconnection of power to water pumping system deprived the occupants access to clean water and had the effect of affecting the landlord’s economic interests and property reputation, thereby threatening the rights guaranteed under article 46 (c) read with article 60 (1) (b) and (c) of the Constitution.
The petitioner contended that in line with the Energy Policy and pursuant to article 46(1)(b) of the Constitution, the 1 st respondent is required to publish on its website indicators of measuring reliability and quality of electricity it supplies to customers.
The petitioner asserted that the respondents violated the principle of legality by failing to meet the timeframe for restoring power for the period 24 th April 2023 and 19 th October 2023. The respondents also failed to ensure that electricity distribution service to the end users conforms to standards of a reliable and stable power supply and to issue notice to the local community before uninstalling the transformer.
The petitioner asserted that the respondents denied electoral supply to the local community on 19 th October 2023 to 24 th October 2023 without consent of the landlords; the 3 rd respondent abdicated its statutory duty by failing to consider his complaint and in doing so, failed to comply with rule 34 (4) and (5) of the Competition Rules, section 9 (1) (b) and (m) and 57 (1) of the Competition Act and articles 73 and 232 (1) (a), (c), e) and (f) of the Constitution.
The petitioner stated that 2 nd respondent’s delay in providing redress for his complaint violated its mandate under sections 131, 132, 137 and 138 of the Energy Act. The petitioner argued that the respondents collectively violated several articles of the Constitution, including articles 10 (2) (b) (c), 27 (1) , (2) and (3), 28, 29 (a) and (d), 33 (1) (a), (b) and (c), 35(1) (b),43 (b), (c), (d), (e) and (f), 46 (1) (a) and (c), 47 (1) and (2), 232 (1), (a), (b), (c), (e)and (f) and sections 136 (1) (c), 158 (1) and (2), 160 (1), 178 (3) of the Energy Act.
The petitioner posited that the 1 st respondent’s actions of uninstalling the transformer, power interruption and discriminative dower disconnection led to the loss of Kshs. 6,299.90, Kshs. 3,599.94 and 5,399.91 (GNI Per Capita Loss) respectively.
Based on the above assertions, the petitioner sought several declarations and orders to address the violations as follow: spent
spent
An order of mandamus be and is hereby issued compelling the 1 st respondent to ensure uninterrupted electricity supply for all households and businesses in Telaviv Area- Embakasi, in strict compliance with section 136(2) of the Energy Act and further, to conduct all maintenance and repair works in manner that minimizes disruption in electricity supply, as mandated by sections 136 (1) (c), 158 (1 & 2), 160(1) and 178(3) of the Energy Act, 2019 and the National Energy Policy 2018 read together with article 21(1) of the Constitution.
An order of mandamus be and is hereby issued compelling the 2 nd respondent to designate a systems operator who will ensure that the step-down transformer installed at Telaviv Area- Embakasi adequately meets the demand and requirements of all authorized consumers connected to it for electrical energy supply, without any limitation, as mandated by section 138 of Energy Act, 2019.
A declaration that the respondents’ collective actions of negligence and ignorance in discharging their statutory mandate contravenes and violates the National Values and Principles of governance as enshrined in article 10, 232 (1) (a, b, c, e & f) of the Constitution.
A declaration that the 1 st respondent actions has threatened and violated the Rights and Fundamental Freedoms of the petitioner contrary to provisions of article 27 (1, 2 & 3) 28, 29 (a & d), 33 (1) (a)(b) & c), 35 (1) (b), 43 (b, c, d, e & f) , 46 (1) (a, b & c) and 47 (1 & 2) of the Constitution.
A declaration that the 1 st respondent actions has threatened and violated the rights and fundamental freedoms of the Local Community contrary to provisions of article 27 (1, 2 & 3) 28, 29 (a & d), 33 (1) (a)(b) & c), 35 (1) (b), 43 (b, c, d, e & f) , 46 (1) (a, b & c) and 47 (1 & 2) of the Constitution.
A declaration that the 1 st and 2 nd respondents jointly failure in discharging their duty has threatened and led to violation of the Rights and Fundamental Freedoms of the Petitioner contrary to provisions of article 27 (1, 2 & 3), 28, 29 (a & d), 33 (1) (a, b & c), 35 (1) (b), 43 (b, c, d, e & f), 46 (1)(a, b & c) and 47 (1 & 2) of the Constitution.
A declaration that the 1 st and 2 nd respondents joint failure in discharging their duty has threatened and led to violation of the Rights and Fundamental Freedoms of the Local Community contrary to provisions of articles 27 (1, 2 & 3), 28, 29 (a & d), 33 (1) (a, b & c), 43 (b, c, d, e & f), 46 (1)(a, b & c) and 47 (1 & 2) of the Constitution.
A declaration that the 1 st , 2 nd , 3 rd and 4 th respondents’ collective indifferent actions in upholding public interest and prioritizing consumer welfare is tantamount to breach in public trust contrary to provisions of article 73 and 232 (1) (a, c, e & f) of the Constitution.
A declaration that the 1strespondent acted ultra vires by unprocedurally disconnecting the four buildings from the electrical grid, disconnecting of the water pumping system, and uninstallation of the transformer, in violation of the provisions of section 136 (1) (c), 158 (1 & 2), 160(1) and 178 (3) of the Energy Act, 2019.
An order of mandamus be and is hereby issued compelling the 4 th respondent to propose, modify and update all appurtenant laws within 3 months of being served this order for establishment of a dedicated Consumer Protection Authority Body that will enforce the provisions of the Consumer Protection Act.
The 1 st , 2 nd and 3 rd respondents be and is hereby ordered to collectively and severally pay Kshs. 3,000,000 in damages to each of the affected individuals in their capacity as customers of the 1 st respondent owing to threat and violation of their rights and fundamental freedoms under articles 27 (1,2 & 3) , 28, 20 (a & d), 33 (1) (a, b & c), 35 (1) (b), 43 (b, c, d, e & f), 46 (1) (a, b & c) and 47 (1 7 2) of the Constitution.
The 1 st respondent be and is hereby ordered to severally pay GNI Per Capita Loss premised on year 2003 Kenya’s GNI value as shall be published by the World Bank based on the Atlas Method as compensation for loss owing outage occasioned by: Transformer Uninstallation; Power Interruption; and Discriminated Power Disconnection to each of the affected individuals in their capacity as customers of the 1 st respondent for having been denied an opportunity to participate in socio-economic development, pursuant to section 166 (2) of the Energy Act, 2019 and article 46(1) (d) of the Constitution.
The cost of this petition to be provided for.
Such other order(s) as this Honourable court shall deem just.
1 st respondent’s response
The 1 st respondent opposed the petition through a preliminary objection and replying affidavits sworn by Jones Obiria Mokua and Rashid Mwachikaha.
Preliminary objection
In the preliminary objection, the 1 st respondent contended that this court lacks jurisdiction to hear and determine the petition on grounds that the petition offends, sections 3(1), 10, 11(e), (f), (i), (k) & (l); 23; 24; 25; 36; 40; 42; 159(3); 160(3) and 224(2) (e) of the Energy Act, 2019 together with regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012 read with article 159 (2) (c) and 169 (1) (d) and (2) of the Constitution and sections 9(2) and (3) of the Fair Administration Actions Act, 2015. The essence of this argument is that there is an alternative dispute resolution mechanism that the petitioner should have exhausted before invoking the jurisdiction of this court
Replying affidavit
In the replying affidavit, the 1 st respondent admitted receiving complaints of frequent power outages in the area. When investigations were conducted it was discovered that frequent power outage was caused by power overload on the transformer serving the area. The transformer was overloaded because of excess power consumption in the area than the contracted power supply between the 1 st respondent and the customers connected to power in the area and specifically in the four buildings.
The 1 st respondent stated that when owner of the buildings applied for electricity supply, they applied for a specific amount of power supply to the respective buildings and entered into contracts for the amount of power applied for. However, owners of the four buildings continued to make further developments which increased the amount of power consumption beyond the contracted power load.
It was also discovered that boreholes had been drilled and water pumps installed to pump water to the four buildings again increasing the amount of electricity consumption beyond the contracted power load leading to overloading of the transformer resulting in frequent power outages.
In order to reduce the strain on the transformer, the 1 st respondent disconnected the four meters attached to the water pumping systems after explaining to the owners of the buildings what they had to do to address the problem. The owners of the buildings were specifically advised to apply for higher power loads supply which they had not done.
The 1 st respondent maintained that it can only supply a transformer in an area based on specific demand for power load. The allegation that the disconnection of the meters attached to the water pumping system was calculated towards depriving tenants’ access to clean water is unfounded. It was the 1 st respondent position that this court lacks jurisdiction to entertain this petition on account of an alternative remedy by virtue of the mandate of Energy and Petroleum Regulatory Authority or the Energy and Petroleum Tribunal. According to the 1 st respondent, the Energy Act 2019 read with Energy (Complaints and Dispute Resolution) Regulations, 2012 provide for procedures to be followed by a consumer who has such a dispute.
2 nd , 3 rd and 4 th respondents’ response
The 2 nd respondent informed the court that it had filed a preliminary objection and a replying affidavit in opposition to the petition. The 3 rd respondent similarly informed the court that it had filed a replying affidavit. These documents are not in the file or the CTS portal. The 4 th respondent did not file any response to the petition.
Petitioner’s rejoinder
The petitioner filed a response to the preliminary objections and the replying affidavits. Responding to the preliminary objection, the petitioner asserted that this court has jurisdiction to hear this petition. The petitioner cited articles 23 (1) and 165 (3) (a) and (b) of the Constitution to support the position that this court has jurisdiction.
In the supplementary affidavit, the petitioner reiterated his position that the petition is not only premised on disconnection of power to the specified four electric meters but on multiples electrical meters in the four buildings. The petitioner stated that the first building with water electrical Meter No. 14170137344 houses an additional 107 prepaid meters; the second building with water electrical meter No. 14170146238 houses an additional 129 prepaid meters; the third building with water electrical meter No. 54160118235 houses an additional 138 prepaid meters and the fourth building with water electrical meter No. 54400533540 houses an additional 13 prepaid meters and 30 post-paid meters. The fifth building which has no borehole system has 33 prepaid meters.
The petitioner stated that the specific zone the 1 st respondent referred to is Tel Aviv in Embakasi and the transformer in issue serves a total of 1,122 prepaid meters and 31 Post-paid electrical meters. The petitioner maintained that section 136 (2) of the Act mandates the 1 st respondent to ensure that the transformer operates with sufficient capacity and, if necessary, must have it augmented so as to fulfil requirements of all authorised electrical energy consumers connected to electrical energy supply.
Section 136 is on conditions on transmission licences. Subsection (2) states that unless otherwise provided in the licence, the licensee should ensure, as far as technically and economically practicable, that the transmission system is operated with enough capacity (and, if necessary, augmented or extended to provide enough capacity) to provide network services to persons authorized to connect to the grid or take electrical energy from the grid.
According to the petitioner, at no point did the 1 st respondent install a check meter at the premises of the five buildings to ascertain the quantity of electrical energy being supplied. Further, section 159(1) of the Energy Act only mandates the 1 st respondent to measure the quantity of electrical energy to ascertain the billable amount and not the voltage utilization hence it was a violation of section 158(1) and (2) of the Energy Act.
The petitioner maintained that the 1 st respondent is responsible for reviewing and evaluating all electrical meter application requests to ensure that the intended purpose of the meters aligns with the established guidelines before authorising installation. The 1 st respondent’s approval for commissioning of the electrical meters serves as irrefutable evidence that it was aware of the subsequent load demand that would be placed on the transformer.
Submissions
The petition was disposed of through written submissions with brief oral highlights.
Petitioners’ submissions
The petitioner highlighted his written submissions citing the decisions in Rusu Investments Ltd v Kaisugu Ltd [2021] eKLR and William Muthee Muthami v Bank of Baroda [2014] eKLR for the position that there exists a contract between him and the 1 st respondent which entitles him (petitioner) to enjoy quality services as guaranteed by article 46 (1) (a) and (c) of the Constitution. The petitioner asserted that due to unreliable electricity supply, he sent a written request for transformer upgrade which the 1 st respondent had consistently failed to act on.
Mr. Karanja, learned counsel for the , relied on the written submissions as well as all the materials filed in support and urged the court to allow the petition as prayed.
In the written submissions, the petitioner relied on section 135 (2) of the Energy Act for the position that the 1 st respondent bears the responsibility of augmenting an overloaded transformer and ensuring that it operates a transmission system with sufficient capacity in compliance with section 136 (2) of the Energy Act. According to the petitioner, this role cannot be delegated without the authority of the 2 nd respondent as it will violate section 124 (1) of the Energy Act. In performing this role, the petitioner argued, the 1 st respondent is fulfilling its fiduciary duty to mitigate risks associated with transformer overload. The petitioner urged that the 1 st respondent’s constant disregard to fulfil that role caused significant distress to him and many other consumers who depend on uninterrupted functioning of the transformer to access electricity for use.
The petitioner relied on sections 5 (1) and (2), (5) (5) (a) and 136 (1) (c) of the Energy Act and section 1.2 No. 2 (m) page 17 of the National Energy Policy, 2018 which provides from whom transmission licensee should collect charges associated with operating and maintaining a transmission system and how those charges should be collected.
The petitioner again relied on section 165 (1) and (2) of the Energy Act for the contention that the 1 st respondent’s practice of imposing an application process for transformer augmentation with intent to collect charges in ways contrary to retailing of electricity at retail tariff rate for purchase by eligible consumers is an illegality and an outright violation of section 136 (c) of the Energy Act and article 47(1) of the Constitution.
The petitioner relied on articles 22(1) and 22 (b) of the Constitution and the decision in Andrew Muma and Charles Kanjama trading as Muma & Kanjama Advocate & others v Deloitte & Touche East Africa & 5 others [2020] eKLR to argue that he had met the requirements for bringing a class action. The petitioner further cited sections 166 (2) and 177 of the Energy Act and the decision in Wekesa v Kenya Power and Lighting Company Ltd & another [2023] KEHC 2900 (KLR) and urged the court to award damages and compensation for loss suffered in terms of prayers (m) and (n) in the petition.
1 st respondent’s submissions
The 1 st respondent submitted that the dispute in this petition relates to disconnection/reconnection of supply of electricity an issue that should be dealt with under the Energy and Petroleum Regulatory Authority and the Energy and Petroleum Tribunal. This court lacks jurisdiction over the matter. Reliance was placed on several decisions, including Phoenix of EA Assurance Company Limited v S.M Thiga t/a Newspaper Service [2019] eKLR; Kenya Ports Authority v Modern Holdings [E.A] Limited [2017] eKLR; David Ndii & 4 others v Attorney General & 3 others; Kenya Human Rights Commission & 2 others [2020] eKLR and Albert Chaurembo Mumbo &7 others v Maurice Munyao & 148 others [2019] eKLR.
The 1 st respondent further relied on articles 159 (1), 169 (1) (d) of the Constitution; sections 3, 9 , 10, 11(e), (f), (k) & (l), 23, 24, 36, 40, 42, 159 (3), 160(3), 167, 168 and 224 (2) (e) of the Energy Act and Regulations 2, 4, 7 , 9 and 21 of the Energy (Complaints and Disputes Resolution) Regulations, 2012 on the jurisdiction of the Energy and Petroleum Regulatory Authority. Additionally, section 25 and 36 of the Energy Act, 2019 and the decision in Cyrus Komo Njoroge v Kiringa Njoroge Gachoka & 2 others [2015] eKLR on the jurisdiction of the Energy & Petroleum Tribunal.
Citing section 9(2) and (3) of the Fair Administrative Action Act and the decisions in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslim for Human Rights & 2 others (Interested Parties) [2020] eKLR; Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) [2021] eKLR; Njoroge v Kenya Power & Lighting Company [2023] KEHC 1924 (KLR) and Kweri v Beehive Media Limited; Capwel Industries Limited (Interested Party) [2023] KEHC 2684 (KLR), the 1 st respondent urged this court to allow the statutory bodies to exercise their jurisdiction over the matter.
The 1 st respondent relied on the decision in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) and Stephenson v Director of Public Prosecutions & 6 others [2023] KEHC 26465 (KLR) on the need for clear pleadings on constitutional litigation and submitted that in order to address the petitioner’s concerns a determination has to be made on whether the disconnection was justified and legal. It is only after finding in the affirmative that electricity and/or meters were illegally disconnected and without justification that the issue as to whether the petitioner’s rights and those of the local community were infringed can be canvassed.
The 1 st respondent maintained that under sections 3(1), 10, 11 (e), (f), (i), k) & (l), 23, 24, 25, 36, 40, 42, 159 (3), 160(3) and 224 (2) (e) of the Energy Act and regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulation, 2012, this court lacks jurisdiction to hear and determine a complaint on disconnection of electricity which falls within the purview of the Energy and Petroleum Tribunal thus, this petition is premature.
The 1 st respondent relied on the decision in S Woolman & M Bishop, Constitutional Law of South Africa (2013) pages 3 to 21, and the decisions in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra) and KKB v SCM & 5 others [2022] KEHC 289 (KLR) for the position that the petition is barred by the doctrine of constitutional avoidance.
The 1 st respondent asserted that the petitioner alluded to various constitutional violations but did not lead tangible evidence to prove the violations. Evidence alluded to a complaint on disconnection of electricity but did not prove violation of the Constitution. The 1 st respondent relied on the decisions in Anarita Karimi Njeru v Republic [1979] eKLR; Mumo Matemo v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR; Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 others [2018] eKLR and Cadama Builders Limited v Mutamba (Suing as the administrators of the Estate of Philip Musei Ndolo) (Deceased)) [2022] KEHC 11029 (KLR) on the point.
The 1 st respondent again relied on Kenya Sugar Board v Ndungu Gathini [2013] eKLR; Jasbir Singh Tai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR and Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR to urge that the petition be dismissed with costs.
2 nd respondent’s submissions
Mr. Muchai, learned counsel for the 2 nd respondent also relied on their written submissions and urged the court to dismiss the petition.
In the written submissions, the 1 st respondent argued that the petition had been filed prematurely and therefore this court lacks jurisdiction because the dispute resolution mechanisms stipulated under the Energy Act and the Energy (Complaints and Dispute Resolution) Regulations had not been exhausted. The 1 st respondent relied on regulations 7(1), 9, 10 and 11 of the Energy (Complaints and Disputes Resolution) Regulations
The 2 nd petitioner submitted that under sections 25 and 36 (3) of the Energy Act there exists the Energy and Petroleum Tribunal mandated to hear and determine disputes and appeals arising from the energy and petroleum sectors. The 2 nd respondent further submitted that no reasonable cause of action had been established against it and urged the court to dismiss the petition with costs.
The 3 rd and 4 th respondents did participate in these proceedings.
Determination
I have considered the petition, responses, arguments by parties and the decisions relied on. The issues that arise for determination are whether this court has jurisdiction and, depending on the answer to this issue, whether the petitioner’s rights were violated.
The petitioner argued that the respondents’ failure to discharge their mandate impedes and threatens his right and rights of the local community to access to basic human needs and an opportunity to contribute to socio economic development. That disconnection of power to water pumping systems deprived occupants’ access to clean water and affected landlords’ economic interests and property reputation, thereby threatening their rights guaranteed under article 46 (c) read with article 60 (1) (b) and (c) of the Constitution among other rights.
The petitioner contended that under the Energy Policy and article 46(1)(b) of the Constitution, the 1 st respondent is required to publish indicators of measuring reliability and quality of electricity supply to customers. The petitioner asserted that the respondents violated the principle of legality by failing to meet the timeframe for restoring power. The respondents also failed to ensure that electricity distribution to users conforms to standards of reliable and stable power supply and to issue notice to the local community before uninstalling the transformer.
The respondents on their part argued that the court lacks jurisdiction to hear and determine this petition as the petition offends, sections 3(1), 10, 11(e), (f), (i), (k) & (l); 23; 24; 25; 36; 40; 42; 159(3); 160(3) and 224(2) (e) of the Energy Act and regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations as read with articles 159 (2) (c) and 169 (1) (d) and (2) of the Constitution and sections 9(2) and (3) of the Fair Administration Actions Act.
Jurisdiction
The 1 st respondent argued that this court has no jurisdiction to hear this petition because there is another forum that should have been moved to resolve the dispute first, thus the petitioner did not exhaust the available alternative dispute resolution mechanism. The petitioner held a different view, contending that the petition concerns constitutional violations and therefore falls within the jurisdiction of this Court.
Jurisdiction is the power or authority given to a court to hear and determine disputes before it. Challenge to jurisdiction is a threshold and fundamental question that the Court has to determine as soon as possible. If the Court finds that it has no jurisdiction to hear the matter, that is the end. The Court should not take any further step. It must down its tools. (See Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KECA 48 (KLR))
Jurisdiction of a court to hear a matter or not being a threshold question is to be determined based on the facts of the matter before it. Where the Court determines that it has no jurisdiction to hear a particular matter, it will have no power to proceed with the matter beyond that point.
Speaking on jurisdiction of a court in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR, the Supreme Court stated:
[68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.
In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 [2011] eKLR, after referring to Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (supra), the Supreme Court observed:
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.
It follows that jurisdiction of a court must flow from the Constitution, statute or both. The court should only exercise juris
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E457 OF 2023
KEVIN JASIRI…………………………………………………….PETITIONER
VERSUS
KENYA POWER AND LIGHTING CORPORATION …….1 ST RESPONDENT
ENERGY AND PETROLEUM
REGULATORY AUTHORITY ……………………………..2 ND RESPONDENT
COMPETITION AUTHORITY OF KENYA………………..3 RD RESPONDENT
KENYA CONSUMERS PROTECTION
ADVISORY COMMITTEE………………………………….4 TH RESPONDENT
JUDGMENT
Background
On 24 th April 2023 and 3 rd October 2023, the 1 st respondent interrupted electricity supply within the petitioner’s area by uninstalling a step-down power transformer for repairs without notice to the local community or information when power would be restored. Power not restored until 26 th April and 6 th October, respectively.
After the reinstallation of the transformer, power supply interruption became regular as evidenced by six tickets issued by the 1 st respondent for the period between 3 rd October 2023 and 19 th October 2023. Owing to this resurgence, on 17 th October 2023 the petitioner wrote a demand letter to the 1 st respondent requesting for a permanent solution. The petitioner also filed a complaint with the 3 rd respondent.
On 18 th October 2023 the 1 st respondent’s officer, one Ruth Kasera, called the petitioner asking for direction to the transformer which the petitioner did. After being shown the transformer, Ms. aser and her team surveyed the area and promised to share their findings with the relevant department for appropriate action.
On 19 th October 2023, the 1 st respondent’s personnel went to the transformer cut off power supply affecting four rental buildings. The petitioner contacted the 1 st respondent’s customer care to inquire on the reasons for the action and talked to a gentleman called Jackson. Jackson informed the petitioner that disconnection of power to the buildings was a contingency measure to reduce transformer overload. The petitioner requested for an official statement but none was given, necessitating the petitioner to send an email but the 1 st respondent remained unresponsive.
On 23 rd October 2023 the petitioner notified the 2 nd and 3 rd respondents of the complaint through email and the 3 rd respondent acknowledged receipt of the complaint. the 3 rd respondent however advised the petitioner to seek redress from the 2 nd respondent. On the other hand, both the 1 st and 2 nd respondents remained unresponsive.
The petitioner then served a notice of intention to sue on 24 th October prompting the 1 st respondent to reconnect the power supply to the buildings on the same day but did not reconnect electrical power for water pumping system to the buildings.
Petition
Based on the above background, the petitioner filed this petition arguing that the respondents’ failure to discharge their mandate impedes and threatens his right and the local community of access to basic functional human needs and an opportunity to contribute to socio economic development. The disconnection of power to water pumping system deprived the occupants access to clean water and had the effect of affecting the landlord’s economic interests and property reputation, thereby threatening the rights guaranteed under article 46 (c) read with article 60 (1) (b) and (c) of the Constitution.
The petitioner contended that in line with the Energy Policy and pursuant to article 46(1)(b) of the Constitution, the 1 st respondent is required to publish on its website indicators of measuring reliability and quality of electricity it supplies to customers.
The petitioner asserted that the respondents violated the principle of legality by failing to meet the timeframe for restoring power for the period 24 th April 2023 and 19 th October 2023. The respondents also failed to ensure that electricity distribution service to the end users conforms to standards of a reliable and stable power supply and to issue notice to the local community before uninstalling the transformer.
The petitioner asserted that the respondents denied electoral supply to the local community on 19 th October 2023 to 24 th October 2023 without consent of the landlords; the 3 rd respondent abdicated its statutory duty by failing to consider his complaint and in doing so, failed to comply with rule 34 (4) and (5) of the Competition Rules, section 9 (1) (b) and (m) and 57 (1) of the Competition Act and articles 73 and 232 (1) (a), (c), e) and (f) of the Constitution.
The petitioner stated that 2 nd respondent’s delay in providing redress for his complaint violated its mandate under sections 131, 132, 137 and 138 of the Energy Act. The petitioner argued that the respondents collectively violated several articles of the Constitution, including articles 10 (2) (b) (c), 27 (1) , (2) and (3), 28, 29 (a) and (d), 33 (1) (a), (b) and (c), 35(1) (b),43 (b), (c), (d), (e) and (f), 46 (1) (a) and (c), 47 (1) and (2), 232 (1), (a), (b), (c), (e)and (f) and sections 136 (1) (c), 158 (1) and (2), 160 (1), 178 (3) of the Energy Act.
The petitioner posited that the 1 st respondent’s actions of uninstalling the transformer, power interruption and discriminative dower disconnection led to the loss of Kshs. 6,299.90, Kshs. 3,599.94 and 5,399.91 (GNI Per Capita Loss) respectively.
Based on the above assertions, the petitioner sought several declarations and orders to address the violations as follow: spent
spent
An order of mandamus be and is hereby issued compelling the 1 st respondent to ensure uninterrupted electricity supply for all households and businesses in Telaviv Area- Embakasi, in strict compliance with section 136(2) of the Energy Act and further, to conduct all maintenance and repair works in manner that minimizes disruption in electricity supply, as mandated by sections 136 (1) (c), 158 (1 & 2), 160(1) and 178(3) of the Energy Act, 2019 and the National Energy Policy 2018 read together with article 21(1) of the Constitution.
An order of mandamus be and is hereby issued compelling the 2 nd respondent to designate a systems operator who will ensure that the step-down transformer installed at Telaviv Area- Embakasi adequately meets the demand and requirements of all authorized consumers connected to it for electrical energy supply, without any limitation, as mandated by section 138 of Energy Act, 2019.
A declaration that the respondents’ collective actions of negligence and ignorance in discharging their statutory mandate contravenes and violates the National Values and Principles of governance as enshrined in article 10, 232 (1) (a, b, c, e & f) of the Constitution.
A declaration that the 1 st respondent actions has threatened and violated the Rights and Fundamental Freedoms of the petitioner contrary to provisions of article 27 (1, 2 & 3) 28, 29 (a & d), 33 (1) (a)(b) & c), 35 (1) (b), 43 (b, c, d, e & f) , 46 (1) (a, b & c) and 47 (1 & 2) of the Constitution.
A declaration that the 1 st respondent actions has threatened and violated the rights and fundamental freedoms of the Local Community contrary to provisions of article 27 (1, 2 & 3) 28, 29 (a & d), 33 (1) (a)(b) & c), 35 (1) (b), 43 (b, c, d, e & f) , 46 (1) (a, b & c) and 47 (1 & 2) of the Constitution.
A declaration that the 1 st and 2 nd respondents jointly failure in discharging their duty has threatened and led to violation of the Rights and Fundamental Freedoms of the Petitioner contrary to provisions of article 27 (1, 2 & 3), 28, 29 (a & d), 33 (1) (a, b & c), 35 (1) (b), 43 (b, c, d, e & f), 46 (1)(a, b & c) and 47 (1 & 2) of the Constitution.
A declaration that the 1 st and 2 nd respondents joint failure in discharging their duty has threatened and led to violation of the Rights and Fundamental Freedoms of the Local Community contrary to provisions of articles 27 (1, 2 & 3), 28, 29 (a & d), 33 (1) (a, b & c), 43 (b, c, d, e & f), 46 (1)(a, b & c) and 47 (1 & 2) of the Constitution.
A declaration that the 1 st , 2 nd , 3 rd and 4 th respondents’ collective indifferent actions in upholding public interest and prioritizing consumer welfare is tantamount to breach in public trust contrary to provisions of article 73 and 232 (1) (a, c, e & f) of the Constitution.
A declaration that the 1strespondent acted ultra vires by unprocedurally disconnecting the four buildings from the electrical grid, disconnecting of the water pumping system, and uninstallation of the transformer, in violation of the provisions of section 136 (1) (c), 158 (1 & 2), 160(1) and 178 (3) of the Energy Act, 2019.
An order of mandamus be and is hereby issued compelling the 4 th respondent to propose, modify and update all appurtenant laws within 3 months of being served this order for establishment of a dedicated Consumer Protection Authority Body that will enforce the provisions of the Consumer Protection Act.
The 1 st , 2 nd and 3 rd respondents be and is hereby ordered to collectively and severally pay Kshs. 3,000,000 in damages to each of the affected individuals in their capacity as customers of the 1 st respondent owing to threat and violation of their rights and fundamental freedoms under articles 27 (1,2 & 3) , 28, 20 (a & d), 33 (1) (a, b & c), 35 (1) (b), 43 (b, c, d, e & f), 46 (1) (a, b & c) and 47 (1 7 2) of the Constitution.
The 1 st respondent be and is hereby ordered to severally pay GNI Per Capita Loss premised on year 2003 Kenya’s GNI value as shall be published by the World Bank based on the Atlas Method as compensation for loss owing outage occasioned by: Transformer Uninstallation; Power Interruption; and Discriminated Power Disconnection to each of the affected individuals in their capacity as customers of the 1 st respondent for having been denied an opportunity to participate in socio-economic development, pursuant to section 166 (2) of the Energy Act, 2019 and article 46(1) (d) of the Constitution.
The cost of this petition to be provided for.
Such other order(s) as this Honourable court shall deem just.
1 st respondent’s response
The 1 st respondent opposed the petition through a preliminary objection and replying affidavits sworn by Jones Obiria Mokua and Rashid Mwachikaha.
Preliminary objection
In the preliminary objection, the 1 st respondent contended that this court lacks jurisdiction to hear and determine the petition on grounds that the petition offends, sections 3(1), 10, 11(e), (f), (i), (k) & (l); 23; 24; 25; 36; 40; 42; 159(3); 160(3) and 224(2) (e) of the Energy Act, 2019 together with regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations, 2012 read with article 159 (2) (c) and 169 (1) (d) and (2) of the Constitution and sections 9(2) and (3) of the Fair Administration Actions Act, 2015. The essence of this argument is that there is an alternative dispute resolution mechanism that the petitioner should have exhausted before invoking the jurisdiction of this court
Replying affidavit
In the replying affidavit, the 1 st respondent admitted receiving complaints of frequent power outages in the area. When investigations were conducted it was discovered that frequent power outage was caused by power overload on the transformer serving the area. The transformer was overloaded because of excess power consumption in the area than the contracted power supply between the 1 st respondent and the customers connected to power in the area and specifically in the four buildings.
The 1 st respondent stated that when owner of the buildings applied for electricity supply, they applied for a specific amount of power supply to the respective buildings and entered into contracts for the amount of power applied for. However, owners of the four buildings continued to make further developments which increased the amount of power consumption beyond the contracted power load.
It was also discovered that boreholes had been drilled and water pumps installed to pump water to the four buildings again increasing the amount of electricity consumption beyond the contracted power load leading to overloading of the transformer resulting in frequent power outages.
In order to reduce the strain on the transformer, the 1 st respondent disconnected the four meters attached to the water pumping systems after explaining to the owners of the buildings what they had to do to address the problem. The owners of the buildings were specifically advised to apply for higher power loads supply which they had not done.
The 1 st respondent maintained that it can only supply a transformer in an area based on specific demand for power load. The allegation that the disconnection of the meters attached to the water pumping system was calculated towards depriving tenants’ access to clean water is unfounded. It was the 1 st respondent position that this court lacks jurisdiction to entertain this petition on account of an alternative remedy by virtue of the mandate of Energy and Petroleum Regulatory Authority or the Energy and Petroleum Tribunal. According to the 1 st respondent, the Energy Act 2019 read with Energy (Complaints and Dispute Resolution) Regulations, 2012 provide for procedures to be followed by a consumer who has such a dispute.
2 nd , 3 rd and 4 th respondents’ response
The 2 nd respondent informed the court that it had filed a preliminary objection and a replying affidavit in opposition to the petition. The 3 rd respondent similarly informed the court that it had filed a replying affidavit. These documents are not in the file or the CTS portal. The 4 th respondent did not file any response to the petition.
Petitioner’s rejoinder
The petitioner filed a response to the preliminary objections and the replying affidavits. Responding to the preliminary objection, the petitioner asserted that this court has jurisdiction to hear this petition. The petitioner cited articles 23 (1) and 165 (3) (a) and (b) of the Constitution to support the position that this court has jurisdiction.
In the supplementary affidavit, the petitioner reiterated his position that the petition is not only premised on disconnection of power to the specified four electric meters but on multiples electrical meters in the four buildings. The petitioner stated that the first building with water electrical Meter No. 14170137344 houses an additional 107 prepaid meters; the second building with water electrical meter No. 14170146238 houses an additional 129 prepaid meters; the third building with water electrical meter No. 54160118235 houses an additional 138 prepaid meters and the fourth building with water electrical meter No. 54400533540 houses an additional 13 prepaid meters and 30 post-paid meters. The fifth building which has no borehole system has 33 prepaid meters.
The petitioner stated that the specific zone the 1 st respondent referred to is Tel Aviv in Embakasi and the transformer in issue serves a total of 1,122 prepaid meters and 31 Post-paid electrical meters. The petitioner maintained that section 136 (2) of the Act mandates the 1 st respondent to ensure that the transformer operates with sufficient capacity and, if necessary, must have it augmented so as to fulfil requirements of all authorised electrical energy consumers connected to electrical energy supply.
Section 136 is on conditions on transmission licences. Subsection (2) states that unless otherwise provided in the licence, the licensee should ensure, as far as technically and economically practicable, that the transmission system is operated with enough capacity (and, if necessary, augmented or extended to provide enough capacity) to provide network services to persons authorized to connect to the grid or take electrical energy from the grid.
According to the petitioner, at no point did the 1 st respondent install a check meter at the premises of the five buildings to ascertain the quantity of electrical energy being supplied. Further, section 159(1) of the Energy Act only mandates the 1 st respondent to measure the quantity of electrical energy to ascertain the billable amount and not the voltage utilization hence it was a violation of section 158(1) and (2) of the Energy Act.
The petitioner maintained that the 1 st respondent is responsible for reviewing and evaluating all electrical meter application requests to ensure that the intended purpose of the meters aligns with the established guidelines before authorising installation. The 1 st respondent’s approval for commissioning of the electrical meters serves as irrefutable evidence that it was aware of the subsequent load demand that would be placed on the transformer.
Submissions
The petition was disposed of through written submissions with brief oral highlights.
Petitioners’ submissions
The petitioner highlighted his written submissions citing the decisions in Rusu Investments Ltd v Kaisugu Ltd [2021] eKLR and William Muthee Muthami v Bank of Baroda [2014] eKLR for the position that there exists a contract between him and the 1 st respondent which entitles him (petitioner) to enjoy quality services as guaranteed by article 46 (1) (a) and (c) of the Constitution. The petitioner asserted that due to unreliable electricity supply, he sent a written request for transformer upgrade which the 1 st respondent had consistently failed to act on.
Mr. Karanja, learned counsel for the , relied on the written submissions as well as all the materials filed in support and urged the court to allow the petition as prayed.
In the written submissions, the petitioner relied on section 135 (2) of the Energy Act for the position that the 1 st respondent bears the responsibility of augmenting an overloaded transformer and ensuring that it operates a transmission system with sufficient capacity in compliance with section 136 (2) of the Energy Act. According to the petitioner, this role cannot be delegated without the authority of the 2 nd respondent as it will violate section 124 (1) of the Energy Act. In performing this role, the petitioner argued, the 1 st respondent is fulfilling its fiduciary duty to mitigate risks associated with transformer overload. The petitioner urged that the 1 st respondent’s constant disregard to fulfil that role caused significant distress to him and many other consumers who depend on uninterrupted functioning of the transformer to access electricity for use.
The petitioner relied on sections 5 (1) and (2), (5) (5) (a) and 136 (1) (c) of the Energy Act and section 1.2 No. 2 (m) page 17 of the National Energy Policy, 2018 which provides from whom transmission licensee should collect charges associated with operating and maintaining a transmission system and how those charges should be collected.
The petitioner again relied on section 165 (1) and (2) of the Energy Act for the contention that the 1 st respondent’s practice of imposing an application process for transformer augmentation with intent to collect charges in ways contrary to retailing of electricity at retail tariff rate for purchase by eligible consumers is an illegality and an outright violation of section 136 (c) of the Energy Act and article 47(1) of the Constitution.
The petitioner relied on articles 22(1) and 22 (b) of the Constitution and the decision in Andrew Muma and Charles Kanjama trading as Muma & Kanjama Advocate & others v Deloitte & Touche East Africa & 5 others [2020] eKLR to argue that he had met the requirements for bringing a class action. The petitioner further cited sections 166 (2) and 177 of the Energy Act and the decision in Wekesa v Kenya Power and Lighting Company Ltd & another [2023] KEHC 2900 (KLR) and urged the court to award damages and compensation for loss suffered in terms of prayers (m) and (n) in the petition.
1 st respondent’s submissions
The 1 st respondent submitted that the dispute in this petition relates to disconnection/reconnection of supply of electricity an issue that should be dealt with under the Energy and Petroleum Regulatory Authority and the Energy and Petroleum Tribunal. This court lacks jurisdiction over the matter. Reliance was placed on several decisions, including Phoenix of EA Assurance Company Limited v S.M Thiga t/a Newspaper Service [2019] eKLR; Kenya Ports Authority v Modern Holdings [E.A] Limited [2017] eKLR; David Ndii & 4 others v Attorney General & 3 others; Kenya Human Rights Commission & 2 others [2020] eKLR and Albert Chaurembo Mumbo &7 others v Maurice Munyao & 148 others [2019] eKLR.
The 1 st respondent further relied on articles 159 (1), 169 (1) (d) of the Constitution; sections 3, 9 , 10, 11(e), (f), (k) & (l), 23, 24, 36, 40, 42, 159 (3), 160(3), 167, 168 and 224 (2) (e) of the Energy Act and Regulations 2, 4, 7 , 9 and 21 of the Energy (Complaints and Disputes Resolution) Regulations, 2012 on the jurisdiction of the Energy and Petroleum Regulatory Authority. Additionally, section 25 and 36 of the Energy Act, 2019 and the decision in Cyrus Komo Njoroge v Kiringa Njoroge Gachoka & 2 others [2015] eKLR on the jurisdiction of the Energy & Petroleum Tribunal.
Citing section 9(2) and (3) of the Fair Administrative Action Act and the decisions in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslim for Human Rights & 2 others (Interested Parties) [2020] eKLR; Abidha Nicholus v Attorney General & 7 others; National Environmental Complaints Committee (NECC) & 5 others (Interested Parties) [2021] eKLR; Njoroge v Kenya Power & Lighting Company [2023] KEHC 1924 (KLR) and Kweri v Beehive Media Limited; Capwel Industries Limited (Interested Party) [2023] KEHC 2684 (KLR), the 1 st respondent urged this court to allow the statutory bodies to exercise their jurisdiction over the matter.
The 1 st respondent relied on the decision in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) and Stephenson v Director of Public Prosecutions & 6 others [2023] KEHC 26465 (KLR) on the need for clear pleadings on constitutional litigation and submitted that in order to address the petitioner’s concerns a determination has to be made on whether the disconnection was justified and legal. It is only after finding in the affirmative that electricity and/or meters were illegally disconnected and without justification that the issue as to whether the petitioner’s rights and those of the local community were infringed can be canvassed.
The 1 st respondent maintained that under sections 3(1), 10, 11 (e), (f), (i), k) & (l), 23, 24, 25, 36, 40, 42, 159 (3), 160(3) and 224 (2) (e) of the Energy Act and regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulation, 2012, this court lacks jurisdiction to hear and determine a complaint on disconnection of electricity which falls within the purview of the Energy and Petroleum Tribunal thus, this petition is premature.
The 1 st respondent relied on the decision in S Woolman & M Bishop, Constitutional Law of South Africa (2013) pages 3 to 21, and the decisions in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra) and KKB v SCM & 5 others [2022] KEHC 289 (KLR) for the position that the petition is barred by the doctrine of constitutional avoidance.
The 1 st respondent asserted that the petitioner alluded to various constitutional violations but did not lead tangible evidence to prove the violations. Evidence alluded to a complaint on disconnection of electricity but did not prove violation of the Constitution. The 1 st respondent relied on the decisions in Anarita Karimi Njeru v Republic [1979] eKLR; Mumo Matemo v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR; Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 others [2018] eKLR and Cadama Builders Limited v Mutamba (Suing as the administrators of the Estate of Philip Musei Ndolo) (Deceased)) [2022] KEHC 11029 (KLR) on the point.
The 1 st respondent again relied on Kenya Sugar Board v Ndungu Gathini [2013] eKLR; Jasbir Singh Tai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR and Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR to urge that the petition be dismissed with costs.
2 nd respondent’s submissions
Mr. Muchai, learned counsel for the 2 nd respondent also relied on their written submissions and urged the court to dismiss the petition.
In the written submissions, the 1 st respondent argued that the petition had been filed prematurely and therefore this court lacks jurisdiction because the dispute resolution mechanisms stipulated under the Energy Act and the Energy (Complaints and Dispute Resolution) Regulations had not been exhausted. The 1 st respondent relied on regulations 7(1), 9, 10 and 11 of the Energy (Complaints and Disputes Resolution) Regulations
The 2 nd petitioner submitted that under sections 25 and 36 (3) of the Energy Act there exists the Energy and Petroleum Tribunal mandated to hear and determine disputes and appeals arising from the energy and petroleum sectors. The 2 nd respondent further submitted that no reasonable cause of action had been established against it and urged the court to dismiss the petition with costs.
The 3 rd and 4 th respondents did participate in these proceedings.
Determination
I have considered the petition, responses, arguments by parties and the decisions relied on. The issues that arise for determination are whether this court has jurisdiction and, depending on the answer to this issue, whether the petitioner’s rights were violated.
The petitioner argued that the respondents’ failure to discharge their mandate impedes and threatens his right and rights of the local community to access to basic human needs and an opportunity to contribute to socio economic development. That disconnection of power to water pumping systems deprived occupants’ access to clean water and affected landlords’ economic interests and property reputation, thereby threatening their rights guaranteed under article 46 (c) read with article 60 (1) (b) and (c) of the Constitution among other rights.
The petitioner contended that under the Energy Policy and article 46(1)(b) of the Constitution, the 1 st respondent is required to publish indicators of measuring reliability and quality of electricity supply to customers. The petitioner asserted that the respondents violated the principle of legality by failing to meet the timeframe for restoring power. The respondents also failed to ensure that electricity distribution to users conforms to standards of reliable and stable power supply and to issue notice to the local community before uninstalling the transformer.
The respondents on their part argued that the court lacks jurisdiction to hear and determine this petition as the petition offends, sections 3(1), 10, 11(e), (f), (i), (k) & (l); 23; 24; 25; 36; 40; 42; 159(3); 160(3) and 224(2) (e) of the Energy Act and regulations 2, 4, 7 and 9 of the Energy (Complaints and Disputes Resolution) Regulations as read with articles 159 (2) (c) and 169 (1) (d) and (2) of the Constitution and sections 9(2) and (3) of the Fair Administration Actions Act.
Jurisdiction
The 1 st respondent argued that this court has no jurisdiction to hear this petition because there is another forum that should have been moved to resolve the dispute first, thus the petitioner did not exhaust the available alternative dispute resolution mechanism. The petitioner held a different view, contending that the petition concerns constitutional violations and therefore falls within the jurisdiction of this Court.
Jurisdiction is the power or authority given to a court to hear and determine disputes before it. Challenge to jurisdiction is a threshold and fundamental question that the Court has to determine as soon as possible. If the Court finds that it has no jurisdiction to hear the matter, that is the end. The Court should not take any further step. It must down its tools. (See Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KECA 48 (KLR))
Jurisdiction of a court to hear a matter or not being a threshold question is to be determined based on the facts of the matter before it. Where the Court determines that it has no jurisdiction to hear a particular matter, it will have no power to proceed with the matter beyond that point.
Speaking on jurisdiction of a court in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR, the Supreme Court stated:
[68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.
In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 [2011] eKLR, after referring to Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (supra), the Supreme Court observed:
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.
It follows that jurisdiction of a court must flow from the Constitution, statute or both. The court should only exercise juris
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