REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMNI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E266 OF 2026
IN THE MATTER OF: THE SUPREMACY AND DEFENCE OF THE CONSTITUTION OF KENYA AS DEMANDED UNDER THE PROVISIONS OF ARTICLES 2(5), 2(6), 20(1) AND 20(2) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE CONTRAVENTION AND/OR THREATENED CONTRAVENTION OF THE PETITIONER'S FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE BILL OF RIGHTS IN CONTRAVENTION OF THE PROVISIONS OF ARTICLES 22(1), 22(3), 23, 24, 27, 28, 31, 35, 43(1), 46 AND 47 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE ARBITRARY, UNLAWFUL AND UNJUSTIFIED DISCONNECTION OF ELECTRICITY SUPPLY TO THE PETITIONER'S RESIDENCE WITHOUT NOTICE, EXPLANATION OR PROCEDURAL FAIRNESS IN CONTRAVENTION OF THE PROVISIONS OF ARTICLES 28 (HUMAN DIGNITY), 31 (RIGHT TO PRIVACY), 35 (ACCESS TO INFORMATION), 43(1) (ECONOMIC AND SOCIAL RIGHTS), 46 (CONSUMER RIGHTS) AND 47 (FAIR ADMINISTRATIVE ACTION) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE BREACH OF THE NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE IN CONTRAVENTION OF THE PROVISIONS OF ARTICLE 10 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE STATUTORY MONOPOLY AND REGULATORY FAILURE UNDER THE ENERGY ACT. 2019 (SECTIONS 139-147 AND 160) AND THE CONSUMER PROTECTION ACT, 2012 (SECTIONS 12, 13. 54-56)
AND
IN THE MATTER OF: THE FAILURE TO PROMOTE COMPETITION. AND
ALTERNATIVE POWER SUPPLY OPTIONS DESPITE CABINET-APPROVED NATIONAL ENERGY POLICY 2025-2034 AND THE LIFTING OF THE PPA MORATORIUM IN LATE 2025
AND
IN THE MATTER OF: SECTIONS 7 AND 8 OF THE JUDICATURE ACT (CAP 8), ORDER 53 OF THE CIVIL PROCEDURE RULES AND THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
-BETWEEN-
PROFESSOR REMMY SHIUNDU BARASA …………….... PETITIONER
AND
THE ATTORNEY GENERAL ……………….……….... 1 ST RESPONDENT
ENERGY & PETROLEUM REGULATORY
AUTHORITY (EPRA) …………………………............. 2 ND RESPONDENT
COMPETITION AUTHORITY OF KENYA ................ 3 RD RESPONDENT
KENYA POWER AND LIGHTING COMPANY .......... 4 TH RESPONDENT
RULING ON PRELIMINARY OBJECTION DATED 7 TH MAY, 2026
Introduction
1. The Petitioner herein Professor Remmy Shiundu Barasa describes himself as an adult Kenyan citizen of sound mind, a Professor, ID No. 11659xxx, residing at Kaimosi Complex (premises owned by Quakers Friends Church), Vihiga County and a long-standing compliant consumer of electricity supplied under Account No. 1094842406.
2. The 1 st Respondent Attorney General is the principal legal advisor to the Government of Kenya under Article 156 of the Constitution and is impleaded as the representative of the State.
3. The 2 nd Respondent is the statutory regulator established under the Energy Act, 2019, with the mandate to license, regulate and oversee all electricity service providers and to ensure compliance with consumer rights and fair administrative action.
4. The 3 rd Respondent is the statutory body established under the Competition Act, 2010, with the mandate to promote and safeguard competition in the national economy, including the electricity sector and to prevent abuse of dominant position by monopolies. Service of this Petition upon the Respondents shall be conducted by the Advocates of the Petitioner.
5. The 4 th Respondent is the sole distributor and retailer of electricity in Kenya, exercising statutory monopoly powers and directly responsible for the impugned disconnection.
6. The Petition is dated 27 th April 2026 and seeks the following reliefs: -
(1 A declaration that the Respondents’ failure to prevent, remedy or regulate the arbitrary disconnection of electricity supply on or about 27 February 2026 (which remains disconnected to date) violates the Petitioner’s rights under Articles 27, 28, 31, 35, 43, 46, and 47 of the Constitution.
(2 A declaration that the Respondents have breached their statutory and constitutional duties by failing to implement the Cabinet-approved National Energy Policy 2025-2034 and the lifting of the Power Purchase Agreements moratorium, thereby perpetuating Kenya Power’s monopoly and denying consumers access to alternative power supply options and competition.
(3 A mandatory order directing the 2 nd and 3 rd Respondents to forthwith facilitate and approve alternative power supply options for the Petitioner. Including but not limited to licensing of independent suppliers, net-metering, mini-grids, captive generation or direct supply from IPPs, so as to end the monopoly and promote competition.
(4 An order directing the Respondents to take all necessary steps to enable proper competition in the electricity market, including open access to the grid and issuance of licenses to alternative providers.
(5 An order of mandamus compelling the 4th Respondents to ensure immediate restoration of electricity supply or, in the alternative, the 1 st , 2 nd , 3 rd Respondent be ordered to immediately approval of alternative power supply within reasonable time, not exceeding 1 months this Court’s order.
(6 General, special, aggravated, and exemplary damages to be assessed, including spoilage of perishables, alternative lighting/transport costs, loss of productive academic hours, professional/reputational harm, and emotional distress.
(7 A mandatory order directing the Respondents to issue a formal written apology retracting any insinuation of arrears
(8 Costs of this Petition on an advocate-client basis, plus interest at court rates.
(9 Such other relief as this Honourable Court deems just and expedient, including any interim or structural orders necessary to promote alternative power supply and competition in the electricity sector.
7. Concurrently with the Petition, the Petitioner filed a Notice of Motion Application dated 27 th April 2026 seeking inter alia , orders compelling the 1 st and 2 nd Respondents and their agents including the 4 th Respondent KPLC herein to restore forthwith electricity supply to his residence at Kaimosi complex, Vihiga County under Account No. 1094842406 pending hearing and determination of the Application and Petition. He seeks: -
(1) SPENT
(2) Pending the inter-parties hearing and determination of this Application, an Order be issued compelling the 1 st and 2 nd Respondents, their servants, agents, assigns and/or licensees (including Kenya Power Limited) to restore electricity supply to the Petitioner’s residence at Kaimosi Complex Vihiga County under Account No. 1094842406 within 24 hours of this Order.
(3) Pending the inter-parties hearing and determination of this Petition, an Order be issued compelling the 1 st and 2 nd Respondents, their servants, agents, assigns and/or licensees (including Kenya Power Limited) to restore electricity supply to the Petitioner’s residence at Kaimosi Complex Vihiga County under Account No. 1094842406 within 24 hours of this Order.
(4) Pending the inter-parties hearing and determination of this Application, an Order do issue restraining the 1 st and 2 nd Respondents, their servants, agents, assigns and/or licensees (including Kenya Power Limited) from interfering with the supply of electricity supply to the Petitioner.
(5) That costs of this Application be provided for.
(6) That this Honourable Court be pleased to grant such further or other orders as it may deem fit and just to meet the ends of justice.
8. The Petition and the Application are both supported by the Petitioner’s sworn Supporting and Verifying Affidavits on even date and premised on the facts and grounds set out on the face of the Petition and the Affidavits. The Petitioner swears that as of 26 th February 2026, his account No. 1094842406 had an overpayment/credit balance of Kshs 1,903, but on or about 27 th February 2026, the 4 th Respondent herein, KPLC disconnected electricity to the Petitioner’s residence without prior notice, explanation, or justification.
9. It is averred that KPLC officers verbally acknowledged the credit balance on 4 th March 2026 but failed to provide a written explanation or restore power, even after a formal demand letter was served on 12 th March 2026.
10. The Petitioner deposed that the disconnection disrupted his essential academic duties such as research, student supervision, lecture preparations and meeting deadlines; caused food spoilage; caused him to incur alternative costs; damaged his professional reputation and caused him emotional distress.
11. The Petitioner alleges breaches of Articles 10 on national values, 24 on limitation of Rights, 27 on Non-Discrimination, 28 on Human Dignity, 31 on Right to Privacy, 35 on Access to Information, 43(1) on Economic and Social Rights, 46 on Consumer Rights and 47 on Fair Administrative Action. The Petitioner asserts that EPRA and the Competition Authority the 2 nd and 3 rd Respondents respectively, failed to end KPLC’s monopoly and implement open market competition, despite the Cabinet-approved National Energy Policy 2025–2034 and the lifting of the Power Purchase Agreements moratorium in late 2025.
12. It is deposed by the Petitioner that the Respondents’ conduct constitutes a clear, ongoing violation of his fundamental rights under Articles 27, 28, 31, 35, 43(1), 46, and 47 of the Constitution , as well as statutory safeguards under Section 160 of the Energy Act, 2019 . The Petitioner avers that he has exhausted all internal remedies and will suffer irreparable harm, uncompensable (sic) by damages if interim orders are not granted immediately.
13. He further highlights that the balance of convenience heavily favours granting the orders, as the Respondents will suffer no prejudice from the immediate restoration, while the Petitioner loses irreplaceable academic opportunities and dignity every day the disconnection continues.
Responses
14. In response to the Petition and the Application, the 2 nd Respondent, Energy and Petroleum Regulatory Authority (EPRA ) filed a Replying Affidavit sworn by Davies Adul, a Senior Surveillance and Enforcement Officer at the Energy and Petroleum Regulatory Authority dated 7 th May 2026 , who deposes that the Application filed against EPRA and other Respondents is based on untrue facts, misguided legal premises and a clear misunderstanding of law and statutory mandates.
15. EPRA outlines its statutory mandate under Section 9 of the Energy Act, Cap 314 , which entails regulating the economic and technical aspects of electric power, licensing the operations of the 4 th Respondent, Kenya Power and Lighting Company and determining complaints and disputes concerning licences and licence conditions.
16. The deponent emphasizes that it functions as a regulatory body rather than a direct supplier of electricity, making it legally incapable of executing the orders sought by the applicant for the restoration of electricity supply.
17. EPRA further contends that the High Court lacks jurisdiction to adjudicate the suit because the applicant failed to exhaust available statutory dispute resolution mechanisms provided under the Energy Act and its subsidiary regulations. Specifically, EPRA highlights Sections 11, 23, 25, 36, 37 and 160 of the Energy Act alongside the Energy (Complaints and Disputes Resolution) Regulations, 2012, which establish procedures for handling disputes, appeals to the Energy and Petroleum Tribunal and subsequent appeals to the High Court.
18. Additionally, EPRA cites the Energy (Electricity Market, Bulk Supply and Open Access) Regulations, 2024, to refute allegations regarding the perpetuation of monopolies. EPRA maintains that the suit improperly attempts to subvert statutory mechanisms by framing the matter as a constitutional violation and therefore requests the court to dismiss or strike out the application with costs as fatally defective and devoid of merit since no valid grounds have been provided by the Applicants to warrant the prayers sought in the Application.
19. The 3 rd Respondent, Competition Authority of Kenya filed a Replying Affidavit dated 10 th August 2026 sworn by Boniface Kamiti, the Manager of the Consumer Protection Department at the Competition Authority of Kenya in opposition to the Petitioner’s Notice of Motion Application and Petition.
20. The deponent asserts that the Application is misconceived, fatally defective and fails to establish any legal or factual basis against Competition Authority of Kenya. He clarifies that the impugned electricity disconnection is entirely attributed to the 4 th Respondent, Kenya Power and Lighting Company, a licensed distributor under the Energy Act, 2019, asserting that Competition Authority of Kenya neither supplies electricity nor regulates distribution licenses, as its statutory mandate under the Competition Act (Cap. 504) is strictly confined to promoting competition and consumer welfare.
21. Consequently, it is contended that joining Competition Authority of Kenya to the suit constitutes misjoinder and an abuse of the court process. Furthermore, Competition Authority of Kenya highlights that the Competition Act establishes a clear, sequential statutory dispute resolution process under Sections 9(1)(b), 40, and 74 . That under this statutory framework, an aggrieved party must first lodge a complaint with Competition Authority of Kenya, undergo investigation and appeal any adverse determination to the Competition Tribunal before escalating the matter to the High Court.
22. It is deposed that the Petitioner failed to lodge any complaint or grievance with Competition Authority of Kenya regarding the disconnection or market dominance before filing this suit. That bypassing these statutory avenues directly subverts Section 9(2) of the Fair Administrative Action Act, 2015.
23. The deponent further notes on behalf of Competition Authority of Kenya that KPLC operates as a statutory distribution body under the Energy Act, 2019. Because no cause of action has been demonstrated and statutory remedies were not exhausted, Competition Authority of Kenya maintains that the prayers sought cannot be granted against it and prays for the dismissal of the Petition against it with costs.
24. The 4 th Respondent Kenya Power and Lighting Company filed Grounds of Opposition dated 7 th May 2026 in response to the Application and Petition on ground that the Court lacks territorial and geographical jurisdiction under S ection 15 of the Civil Procedure Act and Article 165 of the Constitution. Additionally, that the subject-matter jurisdiction is lacking because the dispute falls exclusively under the statutory mandate of the Energy and Petroleum Regulatory Authority (EPRA) or the Energy and Petroleum Tribunal pursuant to the Energy Act, 2019.
25. Another ground is that the Petition and application are fatally defective, incompetent and unprocedural for failing to comply with statutory dispute resolution processes, specifically the Energy (Complaints and Disputes Resolution) Regulations, 2012 . As a result, there is no competent suit properly placed before the Court.
26. Thirdly, it is asserted that the application violates established legal principles for granting injunctive relief under Order 40 of the Civil Procedure Rules, 2010, as the Applicant has failed to establish a prima facie case or present any factual or legal evidence.
27. It is also their ground that the applicant has suppressed material facts, misled the Court regarding the claim against the 4 th Respondent and filed a frivolous, vexatious and misconceived application that constitutes a clear abuse of the court process, warranting dismissal with costs.
28. Alongside their Grounds of Opposition, the 4 th Respondent also filed a Notice of Preliminary Objection dated 7 th May 2026 raising two grounds as follows: -
(1 That this Honourable Court lacks territorial/geographical jurisdiction pursuant to section 15 of the Civil Procedure Act and 165 of the Constitution of Kenya 2010.
(2 This Honourable Court lacks jurisdiction to hear and determine this dispute and application together with all consequential orders should be dismissed with costs as the same offends the provisions of sections 3, 10; 11(e), (f), (i), (k) & (l); 23; 24; 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 as read together with Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010 and sections 9(2) and (3) Fair Administrative Action Act, 2015.
Submissions
29. The parties canvassed the Notice of Preliminary Objection and the Application by way of written submissions which are all now on record.
30. The Petitioner’s submissions are dated 22 nd May 2026. Counsel isolated the following issues for determination: Whether this Court has the territorial jurisdiction to hear and determine this suit? And Whether the Court has the jurisdiction to grant the prayers sought in the Notice of Motion and Petition dated 27th April 2026.
31. It was submitted on the first issue of territorial jurisdiction, that under Sections 12 and 15 of the Civil Procedure Act (Cap 21), a suit must be instituted where the subject matter is situated or where the cause of action arises. Citing Allan Fwamba Malilo v Tai Construction Company Limited [2016] KECA 483 (KLR), the 2 nd Respondent emphasizes that territorial jurisdiction is not a mere procedural technicality that can be overlooked, nor can a suit filed without jurisdiction be transferred. Because the Petitioner resides in Vihiga County, the 4 th Respondent operates offices there and EPRA maintains a regional office in Kisumu serving Vihiga, the 2 nd Respondent contends that the suit ought to have been filed in the High Court at Vihiga rather than Kakamega.
32. On the second issue of subject-matter jurisdiction, the 2 nd Respondent invokes the definition of jurisdiction from Black’s Law Dictionary 9 th Edition and Halsbury’s Laws of England 4 th Edition, Vol. 9 as well as the principle established by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank & Others [2012] eKLR that court jurisdiction flows strictly from the Constitution or legislation.
33. The 2 nd Respondent submits that electricity disputes are governed by the Energy Act, Cap 314, which establishes EPRA under Section 9 to regulate electrical energy under Section 10(a)(i) and investigate complaints under Section 11(i). Sections 23, 24, 25, 36, 37, and 160 of the Energy Act , along with the Energy (Complaints and Disputes Resolution) Regulations 2012, create a specialized three-tiered dispute resolution framework. That under Section 36, original civil jurisdiction and statutory powers to grant equitable remedies such as injunctions and damages belong to the Energy and Petroleum Tribunal, with appeals going to the High Court under Section 37 .
34. Relying on the locus classicus decision in Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] KLR 1 , the 2 nd Respondent submits that a court without jurisdiction must "down tools" immediately. That this position is supported by Court of Appeal and High Court precedents, including Nicholus v Attorney General & 14 Others [2023] KECA 34 (KLR) and Bernard Nyakundi Osugo v Kenya Power Limited [2021] KEHC 8115 , which reaffirm that disputes regarding billing, disconnection, or power infrastructure must first exhaust EPRA and Tribunal administrative mechanisms before escalating to the High Court.
35. Finally, the 2 nd Respondent asserts that the Petitioner cannot subvert the doctrine of exhaustion of remedies by framing statutory energy grievances as constitutional violations. Citing Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & Another [2015] eKLR, Eaton Towers Kenya Limited v Kasing'a & 5 Others [2022] KECA 645 (KLR), Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR, and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, Counsel submits that litigants cannot avoid specialized tribunals through artful or multifaceted pleading, and that Article 159(2)(c) of the Constitution mandates the exhaustion of alternative dispute resolution mechanisms as a court of last resort. Consequently, the High Court lacks jurisdiction, and the suit should be dismissed with costs.
36. The 4 th Respondent Kenya Power and Lighting Company PLC filed its submissions dated 25 th May 2026 in support of its Notice of Preliminary Objection dated 7th May 2026, addressing three main issues for determination: whether the High Court has territorial jurisdiction over the petition, whether the petition is sub judice and an abuse of court process, and whether the High Court lacks subject-matter jurisdiction to hear and determine the matter owing to statutory alternative dispute resolution mechanisms.
37. On the first issue of territorial jurisdiction, Counsel for the 4 th Respondent contends that under Section 15 of the Civil Procedure Act (Cap 21) , a suit must be instituted where the defendant resides, carries on business, or where the cause of action arises. The 4 th Respondent notes that the Petitioner resides in Vihiga County, the alleged disconnection occurred at his residence in Kaimosi, Vihiga County and KPLC maintains a depot and branch offices in Mbale, Vihiga County. Relying on Allan Fwamba Malilo v Tai Construction Company Limited [2016] eKLR, Evelyn Sani Mvuko v James Nyariki Makini [2018] eKLR, National Social Security Fund Board of Trustees v Donald O K Owuor t/a Donald Owuor & Company Advocates [2022] eKLR, and Biyogo & Company Advocates v Peter Ndungu Mburu & 2 Others [2023] eKLR, the 4 th Respondent submits that filing the suit in Nairobi or Kakamega when the cause of action arose in Vihiga violates statutory rules of territorial jurisdiction, rendering the suit incompetent.
38. On the second issue of whether the suit is sub judice and an abuse of court process, the 4 th Respondent relies on Section 6 of the Civil Procedure Act (Cap 21) and Section 9 of the Magistrates' Courts Act, 2015 and highlights that the Petitioner previously instituted Professor Remmy Shiundu Barasa v Kenya Power & Lighting Co. Ltd, Kakamega CMCC No. E089 of 2026, based on the exact same facts, causes of action and prayers regarding Account No. 1094842406.
39. He relie don Kenya National Commission on Human Rights v Attorney General & 2 Others [2020] eKLR, In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR, Telkom Kenya Limited v John Ochanda t/a Ochanda & Company Advocates [2014] eKLR, and Commercial Bank of Africa Limited v Isaac Kamau Ndirangu [2014] eKLR, asserting that litigating identical issues simultaneously across different forums causes unnecessary proliferation of suits, embarrasses the court and constitutes a clear abuse of judicial process.
40. On the third issue of subject-matter jurisdiction and non-exhaustion of remedies, the 4 th Respondent relies on Article 165(3) of the Constitution and the landmark authority Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] KLR 1, which establishes that jurisdiction is everything and without it, a court must immediately down tools. The 4 th Respondent argues that the dispute concerns electricity supply and billing under the Energy Act, 2019, specifically Sections 3, 9, 10, 11, 12, 23, 24, 25, 36, and 160, alongside the Energy (Complaints and Disputes Resolution) Regulations, 2012 . That these provisions create a specialized regulatory pathway requiring complaints to be submitted first to the Energy and Petroleum Regulatory Authority (EPRA) and then appealed to the Energy and Petroleum Tribunal. Citing Speaker of the National Assembly v Karume [1992] eKLR, Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, Multichoice Kenya Ltd v Maina [2013] eKLR, Re the Matter of the Interim Independent Electoral Commission [2011] eKLR, Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 Others [2015] eKLR, Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & Another [2015] eKLR, Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, and Eaton Towers Kenya Limited v Kasing’a & 5 Others [2022] KECA 645 (KLR), the 4 th Respondent emphasizes that where a statute establishes a complete dispute resolution mechanism, litigants cannot bypass it or convert statutory grievances into constitutional petitions through creative pleading.
41. Finally, the 4 th Respondent cited specific High Court and the Court of Appeal decisions upholding the necessity of exhausting EPRA and Tribunal mechanisms before approaching the High Court in electricity billing and disconnection disputes, including Benard Nyakundi Osugo v Kenya Power Limited [2021] KEHC 8115 (KLR), Nicholus v Attorney General & 14 Others [2023] KECA 34 (KLR), and Kenya Power and Lighting Company PLC v Joseph Kanyi King’ori, Busia High Court Civil Appeal No. E064 of 2022 . Consequently, the 4 th Respondent submits that the High Court lacks jurisdiction, and the Petition together with the Application should be struck out with costs.
Analysis and Determination
42. Having considered the Petition and the responses thereto by way of notice of preliminary objection dated 7th May 2026 as well as the submissions canvassing the preliminary objection, the only issue for determination is whether the Preliminary Objection is merited . Under this issue, I will discuss whether this Court has territorial jurisdiction to entertain the Petitioner’s Application and the Petition and if so, whether the petition and application for conservatory orders are prematurely filed, thereby offending the twin doctrines of exhaustion and constitutional avoidance as contended by the 4 th respondent.
43. Jurisdiction is a paramount and is such a substantial issue that once raised by any party or by a court on its own motion, must be determined in limine before a court sets out to determine the merits and demerits of a case. It is also trite that without jurisdiction, a court of law cannot act and must down its tools as was held in the locus classicus Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd [1989] KLR 1 and reiterated by the Court of Appeal in Benson Makori Makworo v Nairobi Metropolitan Services & 2 others (2022) eKLR , the as follows:
“I will, however, briefly reiterate what the Court of Appeal stated in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (unreported) in a decision rendered on 8 th February, 2022 on the doctrine of jurisdiction in general as follows: -
36.Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given…”
44. The apex court on its part has held as follows concerning the significance of jurisdiction, in the Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) case.
“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. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. 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. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMNI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E266 OF 2026
IN THE MATTER OF: THE SUPREMACY AND DEFENCE OF THE CONSTITUTION OF KENYA AS DEMANDED UNDER THE PROVISIONS OF ARTICLES 2(5), 2(6), 20(1) AND 20(2) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE CONTRAVENTION AND/OR THREATENED CONTRAVENTION OF THE PETITIONER'S FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE BILL OF RIGHTS IN CONTRAVENTION OF THE PROVISIONS OF ARTICLES 22(1), 22(3), 23, 24, 27, 28, 31, 35, 43(1), 46 AND 47 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE ARBITRARY, UNLAWFUL AND UNJUSTIFIED DISCONNECTION OF ELECTRICITY SUPPLY TO THE PETITIONER'S RESIDENCE WITHOUT NOTICE, EXPLANATION OR PROCEDURAL FAIRNESS IN CONTRAVENTION OF THE PROVISIONS OF ARTICLES 28 (HUMAN DIGNITY), 31 (RIGHT TO PRIVACY), 35 (ACCESS TO INFORMATION), 43(1) (ECONOMIC AND SOCIAL RIGHTS), 46 (CONSUMER RIGHTS) AND 47 (FAIR ADMINISTRATIVE ACTION) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE BREACH OF THE NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE IN CONTRAVENTION OF THE PROVISIONS OF ARTICLE 10 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE STATUTORY MONOPOLY AND REGULATORY FAILURE UNDER THE ENERGY ACT. 2019 (SECTIONS 139-147 AND 160) AND THE CONSUMER PROTECTION ACT, 2012 (SECTIONS 12, 13. 54-56)
AND
IN THE MATTER OF: THE FAILURE TO PROMOTE COMPETITION. AND
ALTERNATIVE POWER SUPPLY OPTIONS DESPITE CABINET-APPROVED NATIONAL ENERGY POLICY 2025-2034 AND THE LIFTING OF THE PPA MORATORIUM IN LATE 2025
AND
IN THE MATTER OF: SECTIONS 7 AND 8 OF THE JUDICATURE ACT (CAP 8), ORDER 53 OF THE CIVIL PROCEDURE RULES AND THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
-BETWEEN-
PROFESSOR REMMY SHIUNDU BARASA …………….... PETITIONER
AND
THE ATTORNEY GENERAL ……………….……….... 1 ST RESPONDENT
ENERGY & PETROLEUM REGULATORY
AUTHORITY (EPRA) …………………………............. 2 ND RESPONDENT
COMPETITION AUTHORITY OF KENYA ................ 3 RD RESPONDENT
KENYA POWER AND LIGHTING COMPANY .......... 4 TH RESPONDENT
RULING ON PRELIMINARY OBJECTION DATED 7 TH MAY, 2026
Introduction
1. The Petitioner herein Professor Remmy Shiundu Barasa describes himself as an adult Kenyan citizen of sound mind, a Professor, ID No. 11659xxx, residing at Kaimosi Complex (premises owned by Quakers Friends Church), Vihiga County and a long-standing compliant consumer of electricity supplied under Account No. 1094842406.
2. The 1 st Respondent Attorney General is the principal legal advisor to the Government of Kenya under Article 156 of the Constitution and is impleaded as the representative of the State.
3. The 2 nd Respondent is the statutory regulator established under the Energy Act, 2019, with the mandate to license, regulate and oversee all electricity service providers and to ensure compliance with consumer rights and fair administrative action.
4. The 3 rd Respondent is the statutory body established under the Competition Act, 2010, with the mandate to promote and safeguard competition in the national economy, including the electricity sector and to prevent abuse of dominant position by monopolies. Service of this Petition upon the Respondents shall be conducted by the Advocates of the Petitioner.
5. The 4 th Respondent is the sole distributor and retailer of electricity in Kenya, exercising statutory monopoly powers and directly responsible for the impugned disconnection.
6. The Petition is dated 27 th April 2026 and seeks the following reliefs: -
(1 A declaration that the Respondents’ failure to prevent, remedy or regulate the arbitrary disconnection of electricity supply on or about 27 February 2026 (which remains disconnected to date) violates the Petitioner’s rights under Articles 27, 28, 31, 35, 43, 46, and 47 of the Constitution.
(2 A declaration that the Respondents have breached their statutory and constitutional duties by failing to implement the Cabinet-approved National Energy Policy 2025-2034 and the lifting of the Power Purchase Agreements moratorium, thereby perpetuating Kenya Power’s monopoly and denying consumers access to alternative power supply options and competition.
(3 A mandatory order directing the 2 nd and 3 rd Respondents to forthwith facilitate and approve alternative power supply options for the Petitioner. Including but not limited to licensing of independent suppliers, net-metering, mini-grids, captive generation or direct supply from IPPs, so as to end the monopoly and promote competition.
(4 An order directing the Respondents to take all necessary steps to enable proper competition in the electricity market, including open access to the grid and issuance of licenses to alternative providers.
(5 An order of mandamus compelling the 4th Respondents to ensure immediate restoration of electricity supply or, in the alternative, the 1 st , 2 nd , 3 rd Respondent be ordered to immediately approval of alternative power supply within reasonable time, not exceeding 1 months this Court’s order.
(6 General, special, aggravated, and exemplary damages to be assessed, including spoilage of perishables, alternative lighting/transport costs, loss of productive academic hours, professional/reputational harm, and emotional distress.
(7 A mandatory order directing the Respondents to issue a formal written apology retracting any insinuation of arrears
(8 Costs of this Petition on an advocate-client basis, plus interest at court rates.
(9 Such other relief as this Honourable Court deems just and expedient, including any interim or structural orders necessary to promote alternative power supply and competition in the electricity sector.
7. Concurrently with the Petition, the Petitioner filed a Notice of Motion Application dated 27 th April 2026 seeking inter alia , orders compelling the 1 st and 2 nd Respondents and their agents including the 4 th Respondent KPLC herein to restore forthwith electricity supply to his residence at Kaimosi complex, Vihiga County under Account No. 1094842406 pending hearing and determination of the Application and Petition. He seeks: -
(1) SPENT
(2) Pending the inter-parties hearing and determination of this Application, an Order be issued compelling the 1 st and 2 nd Respondents, their servants, agents, assigns and/or licensees (including Kenya Power Limited) to restore electricity supply to the Petitioner’s residence at Kaimosi Complex Vihiga County under Account No. 1094842406 within 24 hours of this Order.
(3) Pending the inter-parties hearing and determination of this Petition, an Order be issued compelling the 1 st and 2 nd Respondents, their servants, agents, assigns and/or licensees (including Kenya Power Limited) to restore electricity supply to the Petitioner’s residence at Kaimosi Complex Vihiga County under Account No. 1094842406 within 24 hours of this Order.
(4) Pending the inter-parties hearing and determination of this Application, an Order do issue restraining the 1 st and 2 nd Respondents, their servants, agents, assigns and/or licensees (including Kenya Power Limited) from interfering with the supply of electricity supply to the Petitioner.
(5) That costs of this Application be provided for.
(6) That this Honourable Court be pleased to grant such further or other orders as it may deem fit and just to meet the ends of justice.
8. The Petition and the Application are both supported by the Petitioner’s sworn Supporting and Verifying Affidavits on even date and premised on the facts and grounds set out on the face of the Petition and the Affidavits. The Petitioner swears that as of 26 th February 2026, his account No. 1094842406 had an overpayment/credit balance of Kshs 1,903, but on or about 27 th February 2026, the 4 th Respondent herein, KPLC disconnected electricity to the Petitioner’s residence without prior notice, explanation, or justification.
9. It is averred that KPLC officers verbally acknowledged the credit balance on 4 th March 2026 but failed to provide a written explanation or restore power, even after a formal demand letter was served on 12 th March 2026.
10. The Petitioner deposed that the disconnection disrupted his essential academic duties such as research, student supervision, lecture preparations and meeting deadlines; caused food spoilage; caused him to incur alternative costs; damaged his professional reputation and caused him emotional distress.
11. The Petitioner alleges breaches of Articles 10 on national values, 24 on limitation of Rights, 27 on Non-Discrimination, 28 on Human Dignity, 31 on Right to Privacy, 35 on Access to Information, 43(1) on Economic and Social Rights, 46 on Consumer Rights and 47 on Fair Administrative Action. The Petitioner asserts that EPRA and the Competition Authority the 2 nd and 3 rd Respondents respectively, failed to end KPLC’s monopoly and implement open market competition, despite the Cabinet-approved National Energy Policy 2025–2034 and the lifting of the Power Purchase Agreements moratorium in late 2025.
12. It is deposed by the Petitioner that the Respondents’ conduct constitutes a clear, ongoing violation of his fundamental rights under Articles 27, 28, 31, 35, 43(1), 46, and 47 of the Constitution , as well as statutory safeguards under Section 160 of the Energy Act, 2019 . The Petitioner avers that he has exhausted all internal remedies and will suffer irreparable harm, uncompensable (sic) by damages if interim orders are not granted immediately.
13. He further highlights that the balance of convenience heavily favours granting the orders, as the Respondents will suffer no prejudice from the immediate restoration, while the Petitioner loses irreplaceable academic opportunities and dignity every day the disconnection continues.
Responses
14. In response to the Petition and the Application, the 2 nd Respondent, Energy and Petroleum Regulatory Authority (EPRA ) filed a Replying Affidavit sworn by Davies Adul, a Senior Surveillance and Enforcement Officer at the Energy and Petroleum Regulatory Authority dated 7 th May 2026 , who deposes that the Application filed against EPRA and other Respondents is based on untrue facts, misguided legal premises and a clear misunderstanding of law and statutory mandates.
15. EPRA outlines its statutory mandate under Section 9 of the Energy Act, Cap 314 , which entails regulating the economic and technical aspects of electric power, licensing the operations of the 4 th Respondent, Kenya Power and Lighting Company and determining complaints and disputes concerning licences and licence conditions.
16. The deponent emphasizes that it functions as a regulatory body rather than a direct supplier of electricity, making it legally incapable of executing the orders sought by the applicant for the restoration of electricity supply.
17. EPRA further contends that the High Court lacks jurisdiction to adjudicate the suit because the applicant failed to exhaust available statutory dispute resolution mechanisms provided under the Energy Act and its subsidiary regulations. Specifically, EPRA highlights Sections 11, 23, 25, 36, 37 and 160 of the Energy Act alongside the Energy (Complaints and Disputes Resolution) Regulations, 2012, which establish procedures for handling disputes, appeals to the Energy and Petroleum Tribunal and subsequent appeals to the High Court.
18. Additionally, EPRA cites the Energy (Electricity Market, Bulk Supply and Open Access) Regulations, 2024, to refute allegations regarding the perpetuation of monopolies. EPRA maintains that the suit improperly attempts to subvert statutory mechanisms by framing the matter as a constitutional violation and therefore requests the court to dismiss or strike out the application with costs as fatally defective and devoid of merit since no valid grounds have been provided by the Applicants to warrant the prayers sought in the Application.
19. The 3 rd Respondent, Competition Authority of Kenya filed a Replying Affidavit dated 10 th August 2026 sworn by Boniface Kamiti, the Manager of the Consumer Protection Department at the Competition Authority of Kenya in opposition to the Petitioner’s Notice of Motion Application and Petition.
20. The deponent asserts that the Application is misconceived, fatally defective and fails to establish any legal or factual basis against Competition Authority of Kenya. He clarifies that the impugned electricity disconnection is entirely attributed to the 4 th Respondent, Kenya Power and Lighting Company, a licensed distributor under the Energy Act, 2019, asserting that Competition Authority of Kenya neither supplies electricity nor regulates distribution licenses, as its statutory mandate under the Competition Act (Cap. 504) is strictly confined to promoting competition and consumer welfare.
21. Consequently, it is contended that joining Competition Authority of Kenya to the suit constitutes misjoinder and an abuse of the court process. Furthermore, Competition Authority of Kenya highlights that the Competition Act establishes a clear, sequential statutory dispute resolution process under Sections 9(1)(b), 40, and 74 . That under this statutory framework, an aggrieved party must first lodge a complaint with Competition Authority of Kenya, undergo investigation and appeal any adverse determination to the Competition Tribunal before escalating the matter to the High Court.
22. It is deposed that the Petitioner failed to lodge any complaint or grievance with Competition Authority of Kenya regarding the disconnection or market dominance before filing this suit. That bypassing these statutory avenues directly subverts Section 9(2) of the Fair Administrative Action Act, 2015.
23. The deponent further notes on behalf of Competition Authority of Kenya that KPLC operates as a statutory distribution body under the Energy Act, 2019. Because no cause of action has been demonstrated and statutory remedies were not exhausted, Competition Authority of Kenya maintains that the prayers sought cannot be granted against it and prays for the dismissal of the Petition against it with costs.
24. The 4 th Respondent Kenya Power and Lighting Company filed Grounds of Opposition dated 7 th May 2026 in response to the Application and Petition on ground that the Court lacks territorial and geographical jurisdiction under S ection 15 of the Civil Procedure Act and Article 165 of the Constitution. Additionally, that the subject-matter jurisdiction is lacking because the dispute falls exclusively under the statutory mandate of the Energy and Petroleum Regulatory Authority (EPRA) or the Energy and Petroleum Tribunal pursuant to the Energy Act, 2019.
25. Another ground is that the Petition and application are fatally defective, incompetent and unprocedural for failing to comply with statutory dispute resolution processes, specifically the Energy (Complaints and Disputes Resolution) Regulations, 2012 . As a result, there is no competent suit properly placed before the Court.
26. Thirdly, it is asserted that the application violates established legal principles for granting injunctive relief under Order 40 of the Civil Procedure Rules, 2010, as the Applicant has failed to establish a prima facie case or present any factual or legal evidence.
27. It is also their ground that the applicant has suppressed material facts, misled the Court regarding the claim against the 4 th Respondent and filed a frivolous, vexatious and misconceived application that constitutes a clear abuse of the court process, warranting dismissal with costs.
28. Alongside their Grounds of Opposition, the 4 th Respondent also filed a Notice of Preliminary Objection dated 7 th May 2026 raising two grounds as follows: -
(1 That this Honourable Court lacks territorial/geographical jurisdiction pursuant to section 15 of the Civil Procedure Act and 165 of the Constitution of Kenya 2010.
(2 This Honourable Court lacks jurisdiction to hear and determine this dispute and application together with all consequential orders should be dismissed with costs as the same offends the provisions of sections 3, 10; 11(e), (f), (i), (k) & (l); 23; 24; 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 as read together with Article 159(2)(c) and 169(1)(d) and (2) of the Constitution of Kenya, 2010 and sections 9(2) and (3) Fair Administrative Action Act, 2015.
Submissions
29. The parties canvassed the Notice of Preliminary Objection and the Application by way of written submissions which are all now on record.
30. The Petitioner’s submissions are dated 22 nd May 2026. Counsel isolated the following issues for determination: Whether this Court has the territorial jurisdiction to hear and determine this suit? And Whether the Court has the jurisdiction to grant the prayers sought in the Notice of Motion and Petition dated 27th April 2026.
31. It was submitted on the first issue of territorial jurisdiction, that under Sections 12 and 15 of the Civil Procedure Act (Cap 21), a suit must be instituted where the subject matter is situated or where the cause of action arises. Citing Allan Fwamba Malilo v Tai Construction Company Limited [2016] KECA 483 (KLR), the 2 nd Respondent emphasizes that territorial jurisdiction is not a mere procedural technicality that can be overlooked, nor can a suit filed without jurisdiction be transferred. Because the Petitioner resides in Vihiga County, the 4 th Respondent operates offices there and EPRA maintains a regional office in Kisumu serving Vihiga, the 2 nd Respondent contends that the suit ought to have been filed in the High Court at Vihiga rather than Kakamega.
32. On the second issue of subject-matter jurisdiction, the 2 nd Respondent invokes the definition of jurisdiction from Black’s Law Dictionary 9 th Edition and Halsbury’s Laws of England 4 th Edition, Vol. 9 as well as the principle established by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank & Others [2012] eKLR that court jurisdiction flows strictly from the Constitution or legislation.
33. The 2 nd Respondent submits that electricity disputes are governed by the Energy Act, Cap 314, which establishes EPRA under Section 9 to regulate electrical energy under Section 10(a)(i) and investigate complaints under Section 11(i). Sections 23, 24, 25, 36, 37, and 160 of the Energy Act , along with the Energy (Complaints and Disputes Resolution) Regulations 2012, create a specialized three-tiered dispute resolution framework. That under Section 36, original civil jurisdiction and statutory powers to grant equitable remedies such as injunctions and damages belong to the Energy and Petroleum Tribunal, with appeals going to the High Court under Section 37 .
34. Relying on the locus classicus decision in Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] KLR 1 , the 2 nd Respondent submits that a court without jurisdiction must "down tools" immediately. That this position is supported by Court of Appeal and High Court precedents, including Nicholus v Attorney General & 14 Others [2023] KECA 34 (KLR) and Bernard Nyakundi Osugo v Kenya Power Limited [2021] KEHC 8115 , which reaffirm that disputes regarding billing, disconnection, or power infrastructure must first exhaust EPRA and Tribunal administrative mechanisms before escalating to the High Court.
35. Finally, the 2 nd Respondent asserts that the Petitioner cannot subvert the doctrine of exhaustion of remedies by framing statutory energy grievances as constitutional violations. Citing Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & Another [2015] eKLR, Eaton Towers Kenya Limited v Kasing'a & 5 Others [2022] KECA 645 (KLR), Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others [2020] eKLR, and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, Counsel submits that litigants cannot avoid specialized tribunals through artful or multifaceted pleading, and that Article 159(2)(c) of the Constitution mandates the exhaustion of alternative dispute resolution mechanisms as a court of last resort. Consequently, the High Court lacks jurisdiction, and the suit should be dismissed with costs.
36. The 4 th Respondent Kenya Power and Lighting Company PLC filed its submissions dated 25 th May 2026 in support of its Notice of Preliminary Objection dated 7th May 2026, addressing three main issues for determination: whether the High Court has territorial jurisdiction over the petition, whether the petition is sub judice and an abuse of court process, and whether the High Court lacks subject-matter jurisdiction to hear and determine the matter owing to statutory alternative dispute resolution mechanisms.
37. On the first issue of territorial jurisdiction, Counsel for the 4 th Respondent contends that under Section 15 of the Civil Procedure Act (Cap 21) , a suit must be instituted where the defendant resides, carries on business, or where the cause of action arises. The 4 th Respondent notes that the Petitioner resides in Vihiga County, the alleged disconnection occurred at his residence in Kaimosi, Vihiga County and KPLC maintains a depot and branch offices in Mbale, Vihiga County. Relying on Allan Fwamba Malilo v Tai Construction Company Limited [2016] eKLR, Evelyn Sani Mvuko v James Nyariki Makini [2018] eKLR, National Social Security Fund Board of Trustees v Donald O K Owuor t/a Donald Owuor & Company Advocates [2022] eKLR, and Biyogo & Company Advocates v Peter Ndungu Mburu & 2 Others [2023] eKLR, the 4 th Respondent submits that filing the suit in Nairobi or Kakamega when the cause of action arose in Vihiga violates statutory rules of territorial jurisdiction, rendering the suit incompetent.
38. On the second issue of whether the suit is sub judice and an abuse of court process, the 4 th Respondent relies on Section 6 of the Civil Procedure Act (Cap 21) and Section 9 of the Magistrates' Courts Act, 2015 and highlights that the Petitioner previously instituted Professor Remmy Shiundu Barasa v Kenya Power & Lighting Co. Ltd, Kakamega CMCC No. E089 of 2026, based on the exact same facts, causes of action and prayers regarding Account No. 1094842406.
39. He relie don Kenya National Commission on Human Rights v Attorney General & 2 Others [2020] eKLR, In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR, Telkom Kenya Limited v John Ochanda t/a Ochanda & Company Advocates [2014] eKLR, and Commercial Bank of Africa Limited v Isaac Kamau Ndirangu [2014] eKLR, asserting that litigating identical issues simultaneously across different forums causes unnecessary proliferation of suits, embarrasses the court and constitutes a clear abuse of judicial process.
40. On the third issue of subject-matter jurisdiction and non-exhaustion of remedies, the 4 th Respondent relies on Article 165(3) of the Constitution and the landmark authority Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] KLR 1, which establishes that jurisdiction is everything and without it, a court must immediately down tools. The 4 th Respondent argues that the dispute concerns electricity supply and billing under the Energy Act, 2019, specifically Sections 3, 9, 10, 11, 12, 23, 24, 25, 36, and 160, alongside the Energy (Complaints and Disputes Resolution) Regulations, 2012 . That these provisions create a specialized regulatory pathway requiring complaints to be submitted first to the Energy and Petroleum Regulatory Authority (EPRA) and then appealed to the Energy and Petroleum Tribunal. Citing Speaker of the National Assembly v Karume [1992] eKLR, Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, Multichoice Kenya Ltd v Maina [2013] eKLR, Re the Matter of the Interim Independent Electoral Commission [2011] eKLR, Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 Others [2015] eKLR, Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & Another [2015] eKLR, Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, and Eaton Towers Kenya Limited v Kasing’a & 5 Others [2022] KECA 645 (KLR), the 4 th Respondent emphasizes that where a statute establishes a complete dispute resolution mechanism, litigants cannot bypass it or convert statutory grievances into constitutional petitions through creative pleading.
41. Finally, the 4 th Respondent cited specific High Court and the Court of Appeal decisions upholding the necessity of exhausting EPRA and Tribunal mechanisms before approaching the High Court in electricity billing and disconnection disputes, including Benard Nyakundi Osugo v Kenya Power Limited [2021] KEHC 8115 (KLR), Nicholus v Attorney General & 14 Others [2023] KECA 34 (KLR), and Kenya Power and Lighting Company PLC v Joseph Kanyi King’ori, Busia High Court Civil Appeal No. E064 of 2022 . Consequently, the 4 th Respondent submits that the High Court lacks jurisdiction, and the Petition together with the Application should be struck out with costs.
Analysis and Determination
42. Having considered the Petition and the responses thereto by way of notice of preliminary objection dated 7th May 2026 as well as the submissions canvassing the preliminary objection, the only issue for determination is whether the Preliminary Objection is merited . Under this issue, I will discuss whether this Court has territorial jurisdiction to entertain the Petitioner’s Application and the Petition and if so, whether the petition and application for conservatory orders are prematurely filed, thereby offending the twin doctrines of exhaustion and constitutional avoidance as contended by the 4 th respondent.
43. Jurisdiction is a paramount and is such a substantial issue that once raised by any party or by a court on its own motion, must be determined in limine before a court sets out to determine the merits and demerits of a case. It is also trite that without jurisdiction, a court of law cannot act and must down its tools as was held in the locus classicus Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd [1989] KLR 1 and reiterated by the Court of Appeal in Benson Makori Makworo v Nairobi Metropolitan Services & 2 others (2022) eKLR , the as follows:
“I will, however, briefly reiterate what the Court of Appeal stated in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (unreported) in a decision rendered on 8 th February, 2022 on the doctrine of jurisdiction in general as follows: -
36.Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given…”
44. The apex court on its part has held as follows concerning the significance of jurisdiction, in the Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) case.
“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. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. 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. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law
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